Supreme Court of India
MD. SHAHABUDDINversusSTATE OF BIHAR & ORS.
- Citation
- 2010 INSC 171
- Decided
- 25 March 2010
- Disposal
- Dismissed After
- Bench
- DALVEER BHANDARI
Holding
The High Court’s notification under the first part of s.9(6) CrPC is a valid administrative order that may be issued without a hearing and does not violate Articles 14 or 21; the subsequent notifications are valid, and a trial held inside a jail is deemed an open trial under s.327 CrPC.
Summary
Md. Shahabuddin, a sitting MP, was in custody with more than forty criminal cases pending. Because of serious threats to public order, the Patna High Court, exercising its power under s.9(6) of the CrPC, issued a notification that the Court of Session would hold its sittings inside Siwan District Jail, and the Bihar Government subsequently established a Court of Judicial Magistrate and an Additional Sessions Court inside the jail. The appellant challenged the three notifications, alleging violation of Articles 14 and 21, denial of a public trial under s.327 CrPC, and the requirement of audi alteram partem. The Supreme Court held that the High Court’s power under the first part of s.9(6) is administrative, does not require a hearing, and its exercise does not infringe constitutional rights. The notifications were valid, the trial inside the jail qualifies as an open trial, and no prejudice was shown. Consequently, the appeal was dismissed.
Issues considered
- The validity of the High Court’s notification under s.9(6) CrPC to shift the venue of trial to a jail without hearing the accused.
- Whether such a venue shift amounts to a ‘transfer’ under s.407 CrPC.
- The effect of delayed gazette publication and non‑supply of the notification on its validity.
- Whether conducting the trial inside a jail violates the right to an open public trial under s.327 CrPC and Articles 14 and 21 of the Constitution.
- The scope of s.11 CrPC allowing the State Government, in consultation with the High Court, to establish a Court of Judicial Magistrate inside a jail.
- The applicability of the principle of classification under Article 14 to a single individual.
Legislation cited
- Bengal, Assam and Agra Civil Courts Act, 1887s. 14(1)
- Code of Criminal Procedure, 1973s. 11, s. 327, s. 407, s. 465, s. 9(6)
- Constitution of Indias. Article 14, s. Article 21
- Indian Evidence Act, 1872s. 114(e)
Subjects
Section 9(6) CrPCvenue shiftadministrative poweraudi alteram partemopen trialSection 327 CrPCArticles 14 and 21jail trialtransfer of casesSection 11 CrPCpublic trial
Judgment
[2010] 3 S.C.R. 911
MD. SHAHABUDDIN A
v.
STATE OF BIHAR & ORS.
(Criminal Appeal No. 591 of 2010)
MARCH 25, 2010
B
[DALVEER BHANDARI AND DR. MUKUNDAKAM
SHARMA, JJ.]
Code of Criminal Procedure, 1973:
c
ss. 9(6), 11, 407 and 465 - Notification by High Court
shifting the venue of Court of Session inside the District Jail,
and Notification by State Government establishing Court of
Judicial Magisrate 1st class inside District Jail to try cases
pending against accused - HELD: Are valid - High Court in 0
exercise of its administrative power uls 9(6) is empowered to
shift the venue of the pending case/trial without hearing the
accused and this would not violate his fundamental rights
under Articles 14 and 21 or any other provision of the
Constitution - The power of High Court uls 9(6) is E
administrative in natur~ and as such, it is under no obligation
to observe the rule of audi alteram partem - By issuing the·
Notification, High Court cannot be said to have transfered the
cases pending against the accused - There was a shift
simpliciter in the venue of the trial without there being
anything more - Delay in publishing the Notification and F
supplying a copy thereof to accused would not vitiate the trial
as no prejudice is caused to him- Notification dated 7.6.2006
issued by State Government establishing the Court of Judicial
Magistrate 1st Class inside the District Jail satisfies all the
requirements of s. 11 - Constitution of India, 1950 -Articles G
14 and 21 - Principle of natural justice - Rule of audi
alteram partem - Interpretation of Statutes - Judicial Review
- Practice and Procedure.
911 H
912 SUPREME COURT REPORTS (2010] 3 S.C.. R.
A s. 327 - Court to be open - Trial of accused inside the
jail - HELD: Open trial is an important part of judicial system
- Public access is essential to achieve the objective of
maintaining public confidence in the administration of justice
- Although the universal rule is that criminal trial should be
B an open trial, but in exceptional cases, there can be deviation
from the rule in larger public interest - The instant case falls
in the category of and exceptional cases where, in the
interest of justice, it became imperative to shift the venue of
the .trials inside the jail - However, there is no presumption
C that a trial in prison is not an open trial - Apart from the large
number of lawyers of the accused, press and those who want
to watch the trial have free access to the venue during the courl
proceedings - Thus, no prejudice is caused to the appellant
- Constitution of India, 1950 - Articles 14 and 21 -
D Administration of Justice - Open trial.
Constitution of India, 1950:
Article 14 - Equality before law - Reasonable
classification - A classification may be reasonable even
E though a single individual is treated as a class by himself -
· Code of Criminal Procedure, 1973 - s.9(6).
Plea:
New pleas regarding constitutional validity of s. 9(6) CrPC
F and delay in publication of notification in official gazette and
in supply of copy thereof to accused raised at the time of
hearing of appeal before Supreme Court - HELD: Not
maintainable.
Evidence Act, 1872:
G
s.114, Illustration {e) - Presumption that official act has
been regularly performed - In the Notification issued by the
State Government stating that Courl of Session would hold
its sitting inside District Jail, apart from mentioning s.9(6)
H CrPC, s.14(1) of Bengal, Assam and Agra Civil Courts Act,
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 913
1887 also referred - HELD: If the notification refers to a wrong A
provision, the same cannot be held to be invalid when its
validity could be upheld on the basis of some other provision
- In the instant case, notification was valid in view of provisions
of s.9(6) CrPC- Besides statutory presumption as envisaged
by s. 114 Illustration (e) would also be available - Code of B
Criminal Procedure, 1973 - s.9(6) - Practice and Procedure.
The appellant, a sitting M.P., was involved in a large
number of criminal cases and, as such, was in custody
in District Jail, Siwan in the State of Bihar. The
Superintendent of Police reported that more than forty C
cases were pending against the appellant and there was
serious danger to public peace during his presence in
the court premises; that his supporters and other
criminals could attack the witnesses; that since the
appellant was accused in many cases, other criminal D
groups could also attack him. The matter was taken up
by the Law Secretary of the State with the Registrar
General of the High Court and ultimately, the High Court
in exercise of its powers, under sub-section (6) of s.9 of
the Code of Criminal Procedure, 1973, issued Notification E
dated 20.5,2006 stating that the premises of District Jail,
Siwan would be the place of sitting of the Court of
Session for the Sessions Division of Siwan for
expeditious trial of the Sessions cases pending against
the appellant. Thereafter, the State Government issued F
Notification dated 7.6.2006 to the effect that Court of
Judicial Magistrate I Class, Siwan would hold its sitting
inside the District Jail, Siwan for trial of cases pending
against the appellant. Another Notification dated 7.6.2006,
issued by the State Government, stated that the Additional G
District and Sessions Judge of Siwan Sessions Division "'-· ·.
would hold its sitting inside the District Jail, Siwan to try
Sessions cases pending against the appellant. The
appellant challenged all the three Notifications before the
High Court in a writ petition, which was dismissed. H
914 SUPREME COURT REPORTS [201 OJ ~ ,s.C.R.
A In the instant appeal it was primarily conter:ded for
the appellant that the power u/s 9(6) of the Code of
Criminal Procedure, 1973 could not be exercised for a
particular individual or accused, and if at all, the principle
of 'audi alteram partem' ha~ to be complied with; that the
B Notification .dated 20.5.2006 was vitiated a~ copy thereof
was not supplied to the appellant; that changing the
venue of the Court inside the District Jail would violate
the right of the appellant to be tried in an open court.
Dismissing the appeal, the Court
c
HELD: Per Dalveer Bhandari, J
1.1The High Court, in view of the extraordinary facts
and circumstances of a particular case, is empowered to
0 change the venue of the pending case/trial without
hearing the accused and this would not violate his
fundamental rights guaranteed under Articles 14 and 21
or any other provision of the Constitution. This
controversy is no longer res integra and is fully settled
E in view of the judgment of this Court in Kehar Singh's
case.* [para 153.IV] [998-C-D]
*Kehar Singh vs. State (Delhi Administration) 1988 (2)
Suppl. SCR 24 = 1988 sec (3) 609, relied on.
F 1.2. In the instant case, the record indicates that by
the criminal acts of the appellant reign of terror had
spread. The appellant has also earned enemies who
would like to seize upon an opportunity and endanger his
life if the trial is conducted in general court.
G Simultaneously, other criminals owing allegiance to the
appellant are likely to create law and order problem
including communal tension and endanger the life of the
common public during his trial in general court. After
assessing the ent+re situation, the District Magistrate
H informed the State Government that trial of the appellant
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 915
was not possible in the District Court of Siwan. Pursuant A
to the report of the District Magistrate, the Law Secretary,
Government of Bihar made a request to the High Court
for designation of Court of Session and Court of Judicial
Magistrate, 1st Class inside the Siwan Jail premises for
expeditious trial of the cases pending against the B
appellant. After evaluating and assessing the entire
situation, the notification was issued by the High Court
as also by the State Government in consultation with the
High Court for sitting and establishment of courts for
expeditious trial of cases pending against the appellant. c
[Para 38 and 39] [953-G-H; 954-A-D]
2.1. This Court in Kehar Singh's case has held that the
order of the High Court notifying the trial of a particular
case in a place other than the court house is not a judicial
order but an administrative order. It is clear from the D
wordiny of Section 9 of the Code of Criminal Procedure,
1973 that there is no need for the High Court to give ·a
hearing while deciding the venue of the trial. It is,
therefore, clear that there is no statutory right for the
appellant to be heard. [Para 103-105) [979-G-H; 980-A-F- E
H]
2.2. The principles of natural justice are essential to
the framework of our laws and protection against
arbitrary actions. It is the bounden duty of the courts to F
judicially review administrative actions. However, this
power has to be exercised judiciously. In the instant case,
there is no violation of the principles of natural justice in
shifting the trials of the cases of the appellant from a
regular court to a special court. When there is no prima G
facie violation of the principles of natural justice then one
must properly consi-der whether there is need for a
judicial review of the orders of shifting the trials. [Para
105, 108, 110 and 111] [981-D-E; 982-C-D]
H
916 SUPREME COURT REPORTS [2010] 3 S.C.R.
A State Bank of Patiala & Others v. S.K. Sharma (1996) 3
sec 364, relied on.
Wiseman & Another v. Borneman & Others (1971) A.C.
297; Regina v. Gaming Board for Great Britain (1970) 2 Q.B.
B 417, referred to.
3.1. The decision to hold the trials of cases of the
appellant in jail was taken in pursuance of the notification
dated 20.5.2006 issued by the High Court. The State
Government issued two notifications on 7th June, 2006
C in pursuance of the notification of the High Court dated
20.5.2006. It became imperative for the State to issue the
said notifications because of the Notification of High
Court dated 20.5.2006 particularly when the new venue
of the trial, i.e., Siwan Jail, was not within the control of
D the High Court. All the three notifications are valid and
were issued in consonance with the relevant provisions
of law. [para 153.11 and Ill] [997-G-H; 998-A-B]
3.2. After the High Court took the decision to
E establish a Court of Additional District and Sessions
Judge in the Siwan District Jail, necessary
correspondence/instruments/requests were sent by the
High Court for implementation of its decision, which
ultimately culminated in the two Notifications issued by
F the State Government on 7th June, 2006 and also
culminated in the Notification of the 20th May 2006 being
gazetted on 16th August, 2006. There is, therefore, no
scope for any person, leave alone the appellant, to
contend that the decision was not of the High Court or
G High Court never applied its mind. [para 52] [959-B-D]
4. A notification empowering a Court of Session to
sit and hold a trial inside the jail is not outside the purview
of s.465 of the Code. It would come within the meaning
of "other proceedings" "during a trial", because as per
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 917
the admission of the appellant the trial has already been A
started. [Para 57] [961-A]
5. It cannot be said that the entire trial would vitiate
because of non-supply of a copy of the notification dated
20.5.2006 to the appellant in time. The High Court was B
correct in ordering that a copy of the notification be
supplied to the appellant. Initially the copy of the
notification was not given to the appellant but on the
directions of this Court the same was made available to
the appellant. So there is no surviving grievance of the C
appellant as far as this aspect of the matter is concerned.
[para 141 and 153.I] [994-G-H; 997-E-F]
Managing pirector, ECIL, Hyderabad etc. etc. v. B.
Karunakar etc. etc. (1993) 4 SCC 727; and State Bank of
Patiala & Others v. S.K. Sharma (1996) 3 SCC 364, relied D
on.
6.1. Criminal trial is a public event. What transpires
is a public property. Therefore, open trial is the universal
rule and must be scrupulously adhered to. The right to E
public trial has also been recognized u/s 327 of the Code.
Public trial is an important part of the judicial system.
Every criminal act is an offence against the society. The
people are, therefore, entitled to know whether the justice
delivery system is adequate or inadequate; whether it F
responds appropriately to the situation or it presents a
pathetic picture. The other aspect, which is still more
fundamental, is that when the State representing the
society seeks to prosecute a person, it must do so
openly. In dispensation of justice, the people should be G
satisfied that the State is not misusing its machinery viz.
the Police, the Prosecutors and other Public Servants.
The people may see that the accused is fairly dealt with
and not unjustly condemned. [para 102,131,132 and 145]
{979-C; 989-C-D; 990-B-C; 995-D-E]
H
918 SUPREME COURT REPORTS [2010] 3 S.C.R.
A Kehar Singh vs. State (Delhi Administration) 1988 (2)
Suppl. SCR 24 =1988 sec (3) 609, relied on.
Ajit Kumar Nag v. General Manager (P.J.), Indian Oil
Corporation Ltd.; Haldia & Others (2005) 7 SCC 764, referred
B to
Scott & Another v. Scott: 1913 A.C. 417, referred to.
Cooley's Constitutional Law, Vol I, 8th edn., at page 647,
referred to.
c 6.2. There is yet another aspect. The courts like other
institutions also belong to people. They are as much
human institutions as any other, and could survive only
by the strength of public confidence. The public
confidence can be fostered by exposing courts more and
D more to public gaze. Public access is essential if trial
adjudication is to achieve the objective of maintaining
public confidence in the administration of justice.
Publicity is the authentic hallmark of judicial functioning
distinct from administrative functioning. Open trial serves
E an important prophylactic purpose, providing an outlet
for community concern, hostility, and emotion. It restores
the balance in cases when shocking crime occurs in the
society. [Para 132, and 142-144] [990-C-D; 995-A-C; 994-
G-H]
F
Kehar Singh vs. State (Delhi Administration) 1988 (2)
Suppl. SCR 24 =1988 SCC (3) 609; and Naresh Shridhar
Mirajkar v. State of Maharashtra (1966) 3 SCR 744, relied
on.
G "First Amendment Right of Access to Pretrial Proceeding
in Criminal Cases" by Beth Hornbuckle Fleming Emory Law
Journal, V.32 (1983) P.619, referred to.
Gannett Co. Inc. v. Danial A. DePasquale (1979) 443
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 919
U.S. 368; Richmond Newspapers, Inc. et al v. Commonwealth A
of Virginia et al SSL Ed 2d 973 = (1980) 448 US 555; Globe
Newspaper Co. v. Superior Court for the County of Norfolk
(1982) 457 US 596 : 73 L.Ed. 2d 248, referred to.
6.3. Although the universal rule as recognized in all 8
civilized countries governed by rule of law is that the ·
criminal trial should be a public trial or open trial, but in
exceptional cases there can be deviation from the
universal rule in the larger public interest. However, in
order to ensure that the right of the appellant to a public C
trial is not vitiated by the court being set up inside the jail,
the State must demonstrate that: (a) there is a clear and
logical reason as to why the case was transferred from
the court house to the Jail; and (b) nobody is being
denied entry to the court room as long as they agree to
0
the regular security checks. The case in hand would fall
in the category of those extraordinary and exceptional
cases where in the interest of justice it became imperative
to shift the venue of the trial. The letters exchanged
between the police authorities and the request made to
High Court clearly show that there was serious danger E
in producing the appellant in open court. The police
authorities had shown that the appellant being a sitting
M.P., his supporters and the large crowds were making
a fa.ir trial impossible and creating delays in deciding the
cases. Besides, since the appellant was wanted in many F
cases, other criminal groups could also attack him. It
must be noted that a large number of supporters of the
appellant may create unrest in front of the court room and
much larger security would be required to protect the
witnesses, the officers of the Court and the appellant. It G
is necessary to maintain the discipline of the court which
is not only trying the case of the appellant but a large
number of other cases which were getting delayed by the
presence of a large number of the supporters of the
appellant. [para 110, 127,138,139,146,149 and 154) [982~ H
920 SUPREME COURT REPORTS [2010) 3 S.C.R.
A B; 987-D-E-H; 993-G-H; 994-A-B; 998-F-G]
Alfred Thangarajah Durayappah of Chundikuly v. W.J.
Fernando & Others (1967) 2 AC 337, referred to.
6.4. There is no presumption that a trial in prison is
8
not an open trial. The appellant has merely stated that the
trial of his cases has been transferred from the Siwan
Court to the Siwan Jail. This in itself does not prove that
the trial has been closed to the public. In order to establish
that the appellant's right to a open trial has been denied,
C the appellant has to prove more than mere shifting of the
location of the trial. It has been shown by the
respondents that no one had been prevented from
attending or watching the trial. Apart from appellant's 38
lawyers, the public and the press used to attend to the
D court proceedings. The Siwan Jail is only one kilometer
from the Siwan Court. The court proceedings were
regularly reported in the press. So, jn the instant case no
real prejudice has been caused to the appellant. [Para
112,117, 119, 121 and 153V] [983-A-B; 984-C; 985-8-C-F;
E 998-D-E]
K.L. Tripathi v. State Bank of India & Others (1984) 1
SCC 43; R. Balakrishna Pillai v. State of Kera/a (2000) 7
SCC 129; Jankinath Sarangi v. State of Orissa (1969) 3 SCC
F 392; A.K. Roy & Others v. Union of India & Others (1982) 1
SCC 271 and Sahai Singh v. Emperor AIR 1917 Lah. 311,
referred to.
Samuel H. Sheppard v. E.L. Maxwell 384 U.S. 333
G (1966); Press-Enterprise Co. v. Superior Court 478 U.S. 1
(1986); State of Oregon v. James Donald Jackson 178 Or
App 233, 36 P3d 500 (2001); Stephen Gary Howard v
Commonwealth of Virginia 6 Va. App. 132 (1988); Adolph
Dammerau v. Commonwealth of Virginia 3 Va. App. 285
(1986); The People v. Robert England the Court 83 Cal. App.
H
-
MD. SHAHABUDDIN v. STATE OF B!HAR & ORS. 921
4th 772 (2000); Malloch v. Aberdeen Corporation (1971) 1 A
W.L.R. 1578; and George v Secretary of the State for the
Environment (1979) 77 L.G.R. 689 (1979), referred to.
Union of India & Another v. Tulsiram Patel & Others
1985 (2) Suppl. SCR 131 = (1985) 3 sec 398 ; E. P. B
. Royappa v. State of Tamil Nadu 1974 (2) SCR 348 = (1974)
4 SCC 3; Maneka Gandhi v. Union of India 1978 (2) SCR
621 =(1978) 1 SCC 248; Delhi Transport Corporation v.
D. T.C. Mazdoor Congress & Others 1990 (1) Suppl.
SCR 142 =1991 (Supp) 1 SCC 600; D.~. Yadav v. J.M.A. C
Industries Ltd. 1993 (3) SCR 930 = (1993) 3 SCC 259; State
of WB. v. Anwar Ali Sarkar AIR 1952 SC 75; Krishan Lal v.
State of J&K 1994 (2) SCR 149 = (1994) 4 SCC 422; State
of Karnataka v. Kuppuswamy Gownder & Others 1987 (2)
SCR 295 = (1987) 2 SCC 74; Ranbir Singh v. State of Bihar
(1995) 4 SCC 392; Zahira Habibul/ah H. Shaikh & Another D
v. State of Gujarat & Others (2004) 4 SCC 158; Ranjit Singh
v. Hon'ble the Chief Justice & Others ILR 1985 Delhi 388;
Kai/ash Nath Agarwal & Another v. Emperor AIR (34) 1947
Allahabad 436; re M. R. Venkataraman AIR (37) 1950
Madras 441; re T. R. Ganeshan AIR (37) 1950 Madras 696; E
Prasanta Kumar Mukerjee v. The State AIR (39) 1952
Calcutta 91 Narwarsingh & Another v. State AIR 1952
Madhya Bharat 193, cited.
Per Dr. Mukundakam Sharma, J (Concurring) F
1.1. A bare reading of the provisions of s.9(6) of the
Code of Criminal Procedure, 1973 explicitly indicates that
the power conferred on the High Court is the power to
determine the place or places where the Court of Session
shall ordinarily hold its sittings. The second part which G
immediately follows the first part opens with the word
"but", thereby carving out an exception to the general
rule that the venue of the Court of Session shall be the
place notified by the High Court. However, being an
exception, the Code specifically mandates in the second H
922 SUPREME COURT REPORTS [2010] 3 S.C.R.
A part for observance of a special procedure contemplating
compliance of the rule of audi alteram partem and also for
obtaining the consent of the parties before the Court of
Session may hold its sittings at a place other than the
place or places notified by the High Court. [Para 14] [1007-
B A-E]
1.2. In the instant case, the essential conditions
ingrained in the second part of s. 9(6), are not applicable
inasmuch as the power to change the venue of the trial
of cases pending against the appellant, was exercised by
C the High Court and not by the Court of Session. The
power of the High Court uls 9(6) to notify a particular
place or places where the Court of Session shall
ordinarily hold its sitting is an administrative power unlike
the power of the Court of Session under second part of
D s.9(6) which is a purely judicial power in nature. Being so,
the High Court was under no obligation to observe the
rule of audi alteram partem. It has been the consistent
view of this Court that an administrative order when
passed by a competent authority may not necessarily be
E required to be issued only after due compliance with the
principles of natural justice. [Para 15, 17, 21 and 25] [1008-
8-D; 1009-D-E; 1012-B-C; 1013-D-E]
Kehar Singh vs. State (Delhi Administration) 1988 (2)
Suppl. SCR 24 =1988 SCC (3) 609; Union of India v. Col.
F J.N. Sinha, (1970) 2 SCC 458; Haradhan Saha v. State of
W.B. 1975 ( 1 ) SCR 778 = (1975) 3 SCC 198 ; Olga Tellis
v. Bombay Municipal Corporation 1985 (2) Suppl. SCR
51 =(1985) 3 SCC 545; Carborundum Universal Ltd. v.
Central Board of Direct Taxes, (1989) Supp. 2 SCC 462; and
G Ajit Kumar Nag v. G. M. (PJ), Indian Oil Corp. Ltd. (2005) 7
sec 764, relied on.
1.3. The second part of s.9(6) of the CrPC expressly
requires the Court· of Session to afford the prosecution
and the accused an opportunity of hearing and to obtain
H their consent beforehand whereas there is no such
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 923
stipulation under first part of s.9(6r. The omission of such A
a requirement in case of the High Court pertaining to first
part of sub-section (6) of s.9 is to be construed as a
conscious decision on the part of the legislature for, it
intended to exclude such a requirement when such power
is to be exercised by the High Court. [Para 22] [1012-D- B
F]
1.4. Even otherwise, it is a well-settled principle in law
that the court cannot read anything into a statutory
provision which is plain and unambiguous. The language
employed in a statute is the determinative factor of the C
legislative intent. If the language of the enactment is clear
and unambiguous, it would not be proper for the courts
to add any words thereto and evolve some legislative
intent, not found in the statute. [Para 23] [1012-F-G]
Ansal Properties & Industries Ltd. v. State of Haryana D
2009 (1) SCR 553 = (2009) 3 sec 553, relied on.
1.5. As regards the constitutional validity of s.9(6),
significantly, no such plea was ever raised at any stage
and even such ground was not raised in the memo of
appeal. An important question of constitutional validity of E
a provision in a Central Act cannot be permitted to be
raised for the first time at the stage of final hearing. The
Union of India is also not a party in the proceedings and
in its absence no such issue could be allowed to be
raised, argued and decided. [Para 26] [1013-F-G] F
2.1. Section 407 of the Code deals with the power of
the High Court to "transfer" cases and appeals. The key
word in this section is the word 'transfer', which
essentially consists of two steps: (a) removing a case or G
class of cases from the jurisdiction of the court where it/
they is/are pending trial, and (b) putting it/them under the
jurisdiction of another court (whether of equal or superior
jurisdiction) for adjudication. Thus, every transfer
involves two different courts. [Para 16] [1008-G-H; 1009- H
A]
924 SUPREME COURT REPORTS (2010] 3 S.C.R.
A 2.2. By issuing ttie notification dated 20.5.2006, the
High Court cannot be said to have transferred the cases
pending against the appellant, for the said notification
simply notified the premises of District Jail, Siwan, to be
the place of sitting for holding the trial of cases pending
B against the appellant. The notification did not, in any
manner, affect or abridge the jurisdiction of the Court of
Session, Siwan, to try those cases. Thus, there was a shift
simpliciter in the venue of the trial, without there being
anything more. In such circumstances,· the instant case
c cannot be said to be a case of "transfer" to which the
provisions of s. 407 are attracted. [Para 16) [1009-A-C)
3.1. Section 11 CrPC makes it explicitly clear that a
Court of Judicial Magistrate could be established by th~j
State Government after consultation with the High Court.
D The State Government is vested with the power, after due
consultation with the High Court, to create or to establish
for any local area one or more courts of Judicial
Magistrate First Class so as to try any particular case or
class of cases. [Para 27) [1014-A-C]
E
3.2. By issuing one of the two impugned notifications
dated 7.6.2006 the State of Bihar, in exercise of its powers
conferred u/s 11 of the CrPC and in consultation with the
High Court, established a Court of Judicial Magistrate,
F First Class inside the District Jail, Siwan to hold its sitting
for the trial of cases pending against the appellant in the
Court of Judicial Magistrate, First Class. The impugned
notification satisfies all the requirements and all the four
corners as envisaged u/s 11 of the Code and, therefore,
G the said notification is legal and valid inasmuch as, the
same was issued by the competent authority and also in
full compliance with the requirements and the safeguards
provided in the said provisions. [Para 43) [1020-G-H; ·
1021-A-B]
H 3.3. So far the other notification issued by the
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 925
Government of Bihar on 07 .06.2006 directing that the A
Court of Additional District and Sessions Judge of Siwan
Sessions Division would hold its sitting inside the District
Jail, Siwan to try sessions cases pending against the
appellant is concerned, it appears to be a surplusage,
which was issued for making available the jail premises B -
for the purpose of holding the Court of Session. The
power u/s 9(6) is vested in the High Court and in exercise
of the said power the High Court had issued a
notification on 20.05.2006 which was also published in
the official Gazette. Any further notification by the State c
Government making the jail premises available for the
said purposes cannot be said to be illegal and void. [Para
44) [1021-C-F]
3.4. There is thus no infirmity in establishing both the
Special Courts i.e. the Court of Additional District and D
Sessions Judge to try sessions cases and the Court of
Judicial Magistrate, First Class to try the other cases,
pending against the appellant, inside the premises of the
District Jail, Siwan as the notification u/s 9(6) was issued
in accordance with the provisions of law by the High E
Court and subsequent notification was also issued by
the State Government in consultation with the High Court.
[Para 45) [1021-G-H; 1022-A-B]
4.1. The issue whether the notification dated F
20.5.2006 was published in the official Gazette or not or
whether a copy thereof was supplied to the appellant or
not, is a mixed question of law and fact and, therefore,
the same should have been raised specifically in the writ
petition and at least in the appeal petition. It also does not G
appear from the material available on record that such an
issue was ever raised by the appellant before the High
Court. Therefore, the issue being raised for the first time
at the time of hearing of the appeal before this Court
cannot be permitted to be raised. [Para 32) [1015-B-D]
H
926 SUPREME COURT REPORTS [2010] 3 S.C.R.
A Shakti Tubes Ltd. v. State of Bihar, 2009 (10) SCR 739
= (2009) 7 sec 673, relied on
4.2. However, from the records, it is conclusively
established that the High Court took all necessary steps
to get the notification issued and published in the official
8
gazette. If the Government Press took some time to get
· the notification published in the official gazette, the High
Court cannot be blamed for it nor could the notification
be ~eclared to be void, particularly, when it was so
published in the official gazette, as it is established from
C the records placed before the Court, although after some
delay. [Para 42] [1020-B-D]
5.1. It cannot be said that reference of the provisions
of s.14 (1) of the Bengal, Assam and Agra Civil Courts
D Act, 1887 apart from referring to the provisions of s.9(6)
CrPC in the notification dated 07.06.2006 issued by the
State Government indicates non-application of mind by
the competent authority and on that ground the
notification was illegal and void. If the notification quotes
E a wrong section and refers to a wrong provision, the ·
same cannot be held to be invalid if the validity of the
same could be upheld on the basis of some other
provision. In the instant case, for making available the jail
premises to hold the Court of Session, provisions of
F s.9(6) CrPC would be applicable. [Para 46,47 and 49]
[1022-8-E; 1023-E]
N. Mani v. Sangeetha Theatre,. (2004) 12 SCC 278,
relied on.
G 5.2. It is a well-established law that when an authority
passes an order which is within its competence, it cannot
fail merely because it purports to be made under a wrong
provision if it can be shown to be within ;ts power under
any other provision or rule, and the validity of such
H impugned order must be judged on a consideration of its
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 927
substance and not its form. The principle is that the act A
of a public servant must be ascribed to an actual existing
authority under which it would have validity rather than
to one under which it would be void. In such cases, this
Court will always rely upon s.114 Ill. (e) of the Evidence
Act, 1872 to draw a statutory presumption that the official B
acts are regularly performed and if satisfied that the ,,
action in question is traceable to a statutory power, the
courts will uphold such State action. [para 48) [1022-G-
H; 1023-A-B]
P. Balakotaiah v. Union of India, 1958 SCR 1052 =AIR C
1958 SC 232; Lekhraj Sathramdas Lalvani v. N.M. Shah,
Deputy Custodian-cum-Managing Officer, (1966) 1 SCR 120;
Peerless General Finance and Investment Co. Ltd. v. Reserve
Bank of India, 1992 (1) SCR 406 = (1992) 2 SCC 343; B.S.E.
Brokers' Forum, Bombay v. Securities And Exchange Board D
of India, (2001) 3 SCC 482, relied on.
6. As regards the plea that the power and jurisdiction
u/s 9(6), CrPC could not be exercised by the High Court
in respect of the trials relating to one particular individual E
pending in one Sessions Division, it is well settled law
that a classification may be reasonable even though a
single individual is treated as a class by himself, if there
are some special circumstances or reasons applicable to
him alone and not applicable to others. There were about F
40 cases pending against the appellant and they were
being tried in different courts. Difficulties were being
created for conducting the said cases at various courts
both for the prosecution as also to the appellant.
Therefore, disposal of all the cases pending against the
appellant most" expeditiously at one place without being G
in any manner disturbed by the factors mentioned in the
letter of the Superintendent of Police, could be said to be
a reasonable ground. Expeditious disposal of cases is
also a factor and a necessary concomitant to
administration of justice and the hallmark of fair H
928 SUPREME COURT REPORTS [2010] 3 S.C.R.
A administration of justice. Since the venue of the trial of a
group or a class of cases was shifted by establishing and
constituting a Court within the District Jail, Siwan, the
same cannot be said to be void or invalid in any manner.
[Para 50-51 and 57] [1023-F-H; 1024-A-C-D; 1028-E-F]
B 7.1. So far as the plea that a trial must be conducted
in an open court and the constitution of a special Court
of Session in the jail pi:.emises of District Jail, Siwan
amounts to violation of Articles 14 and 21 of the
Constitution of India as also of the provision contained
C in s.327 CrPC is concerned, although the general rule is
that a trial must be conducted in an open court, it may
sometimes become necessary or rather indispensable to
hold a trial inside a jail. Considerations of public peace
and tranquility, maintenance of law and order situation,
D safety and security of the accused and the witnesses
may make the holding of a trial inside the jail premises
imperative as is the situation in the instant case. A trial
does not stand vitiated solely because it is conducted
inside the jail premises. What is significant is that there
E must be compliance of the provisions contained in s.327
CrPC which guarantees certain safeguards to ensure that
a trial is an open trial. [Para 53-55] [1025-8-C; 1026-8-C-
F-H]
Kehar Singh vs. State (Delhi Administration) 1988 SCC
F (3) 609, relied on.
R. v. Denbigh Justices, (1974) 2 All ER 1052, 1056
(Q8D), relied on. ·
Black's Law Dictionary (6th Edition, 1990, p. 1091),,
G referred to.-
7.2. In the instant case, a general notice inviting the
public to witness the trial of the appellant was affixed on
the jail gate; the appellant was represented by 38
H advocates who regularly attended the court in jail
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 929
premises; the day-to-day proceedings of the court were A
reported in the newspapers daily; and entry was allowed
to all persons after recording their personal details into
a register maintained by the jail authorities. It has also not
been shown that any permission sought for by any
intending person to witness the proceedings was B
refused by the authority. In this view of the matter, there
was sufficient compliance with !;.327 CrPC. (Para 56)
[1027-G-H; 1028-A-8]
West Bengal v. Anwar Ali Sarkar, 1952 SCR 284 =AIR C
1952 SC 75 held in applicable.
7.3. It must be noted that in the instant case, no
special procedure was prescribed and the cases were to
be conducted and disposed of in accordance with the
ordinary criminal procedure as prescribed under the D
Code of Criminal Procedure. Thus, no prejudice was
caused to the appellant while shifting the cases to the
Special Courts situated inside the premises of District
Jail, Siwan. Therefore, there is no violation either of s.327
CrPC or of Articles 14 and 21 of the Constitution. The. E
legality and the validity of all the three notifications is
upheld. Consequently, the trial can proceed as against
the appellant in all the pending cases and it would
continue to be held in terms of the notifications in
accordance with law. The order passed by the High Court F
is upheld. [Para 57, 60 and 61) (1028-G-H; 1029-A-E-G]
Case Law Reference:
Judgment by Dalveer Bhandari, J
1952 SCR 284 not applicable para 11 G
AIR 1936 Privy Council 246 referred to para 14
(1913) A C 417 referred to para 14
65L Ed 2d 973 referred to para 15 H
930 SUPREME COURT REPORTS (2010] 3 S.C.R.
A 1988 (2) Suppl. SCR 24 relied on para 27
(1966) 3 SCR 744 relied on para 27
1985 (2) Suppl. SCR 131 cited para 28
1974 (2) SCR 348 cited para 28
B
1978 (2) SCR 621 cited para 28
1990 (1) Suppl. SCR 142 cited para 31
1993 (3) SCR 930 cited para 32
c
1994 (2) SCR 149 cited para 33
1987 (2) SCR 295 cited para 54
(1982) 1 sec 211 referred to para 72
D AIR 1917 Lah. 311 referred to para 73
AIR (34) 1947 Allahabad 436 referred to para 74
AIR (37) 1950 Madras 441 referred to para 75
E AIR (37) 1950 Madras 696 referred to para 76
AIR (39) 1952 Calcutta 91 referred to para 77
AIR 1952 Madhya Bharat 193 referred to para 77
(1996) 3 sec 364 relied on Para 105
F
(1971) A.C. 297 referred to para 107
(1970) 2 Q.B. 417 referred to para 108
(1967) 2 AC 337 referred to para 111
G para 114
384 U.S. 333 (1966) referred to
478 U.S. 1 (1986) referred to para 114
178 Or App 233, 36 referred to para 115
P3d 500 (2001)
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 931
6 Va. App. 132 (1988) referred to para 115 A
3 Va. App. 285 (1986) referred to para 116
83 Cal. App. 4th 772 (2000) referred to para 118
(1971) 1 W.L.R. 1578 referred to para 120
B
(1984) 1 sec 43 referred to para 122
(1979) 77 L.G.R. 689 (1979) referred to para 123
AIR 1917 Lah. 311 referred to para 118
c
(2000) 1 sec 129 referred to para 124
(1969) 3 sec 392 referred to para 125
(2005) 1 sec 764 relied on para 134
(1982) 457 us 596 : referred to para 135 D
73 L.Ed. 2d 248
(1993) 4 sec 121 relied on para 140
Judgment by Dr. Mukundakam Sharma, J.
E
1988 (2) Suppl.. SCR 24 relied on para 12
(1970) 2 sec 458 relied on para 19
1975 (1) SCR 778 relied on para 20
1985 (2) Suppl. SCR 51 relied on para 21 F
(1989) Supp. 2 sec 462 relied on para 21
(2005) 1 sec 764 relied on para 21
2009 (1) SCR 553 relied on para 23 G
2009 (10) SCR 739 relied on para 32
(2004) 12 sec 218 relied on para 47
1958 SCR 1052 relied on para 48
H
932 SUPREME COURT REPORTS [2010] 3 S.C.R.
A (1966) 1 SCR 120 relied on para 48
1992 (1) SCR 406 relied on para 48
(2001) 3 sec 482 relied on para 48
(1974) 2 All ER relied on para 54
B
10521056 (QBD)
1952 SCR 284 held in applicable para 57
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
c No. 591 of 2010.
From the Judgment & Order dated 14.8.2007 of the High
Court of Judicature at Patna in Criminal Writ Jurisdiction Case
No. 553 of 2006.
D Ram Jethmalani, Pranay Ranjan, Lata Krishnamurthy, P.R.
Mala, Sourab Ajay Gupta, Praneet Ranjan for the Appellant.
Ranjeet Kumar, P.H. Parekh, Gopal Singh, Manish Kumar,
Ajay Kumar Jha, Divya Sinha, Vishal Prasad (for Parekh & Co.)
E for the Respondents.
The Judgment of the Court was delivered by
DALVEER BHANDARI, J. 1. Leave granted.
F 2. This appeal is directed against the judgment of the High
Court of Judicature at Patna passed in Criminal Writ
Jurisdiction Case No.553 of 2006 dated 14.08.2007.
3. The appellant is aggrieved by the notification No.184A
G 1dated 20th May, 2006 whereby the Patna High Court in exercise
·of administrative powers conferred under sub-section (6) of
section 9 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as "the Code") has been pleased to decide that the
premises of the District Jail, Siwan will be the place of sitting
H of the Court of Session for the Sessions Division of Siwan for
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 933
[DALVEER BHANDARI, J.]
the expeditious trial of Sessions cases pending against Md. A
Shahabuddin.
4. The appellant is also aggrieved by the two notifications
bearing No.A/Act-01/2006 Part-1452/J corresponding to S.O.
No. 80 dated 7.6.2006 and No.A/Act-01/2006 Part-1453/J
B
corresponding to S.O. No.82 dt. 7.6.2006 issued by the State
of Bihar at the behest of the High Court of Patna. The State of
Bihar has established a Court of Judicial Magistrate 1st Class
inside the District Jail, Siwan and directed that:
(a) the Court of Judicial Magistrate 1st Class, Siwan shall C
now hold its sitting inside the District Jail Siwan for trial of
cases pending against the appellant Md. Shahabuddin in
the Court of Judicial Magistrate 1st Class; and
(b) This notification shall come into force with effect from D
the 7th June, 2006.
5. The appellant is further aggrieved by another notification
issued on the same day by which the court of the Additional
District & Sessions Judge of Siwan Sessions Division was
directed to now hold its sitting inside the District Jail, Siwan to E
try Sessions cases pending against the appellant Md.
Shahabuddin.
6. Mr. Ram Jethmalani, learned senior counsel appearing
for the appellant canvassed the following propositions of law; F
(a) That in pending criminal cases of which cognizance had
been taken and even evidence had been recorded can only be
shifted to another venue by the trial court after satisfying the
conditions laid down in Section 9(6) of the Code.
G
(b) That the High Court's administrative power of creating
a court is not applicable for transferring a case from one court
to another. A new court with its own defined jurisdiction can be
created for the public generally, or for specified class of cases
generally but not for cases in which a particular citizen is H
934 SUPREME COURT REPORTS [201 O] 3 S.C.R.
A involved. The High Court missed the significance of the word
'ordinarily' in Section 9(6) of the Code.
(c) That the administrative power of the High Court can only
be exercised where the principle of audi alteram partem does
B not apply. In all situations where an order affects the interests
of a party in a pending case, this power is not available. That
power can only be exercised under section 408 of the Code
after hearing the affected parties. It is settled law that even
. administrative orders are subject to the rule of audi alteram
C partem and by not hearing the appellant before transferring of
the venue of cases had led to infringement of the fundamental
rights of the appellant under Articles 14 and 21 of the
Constitution.
(d) That the administrative power is not available merely
D to expedite the trial of a particular case. Expedition is
necessary for all cases. The High Court did not act in the interest
of expedition but really for terrorizing witnesses into giving
evidence which suited the prosecution.
E (e) That the three notifications read together show that the
action was taken by the State Government and the High Court
has merely concurred with it. All the three notifications are thus
without jurisdiction and void.
7. Mr. Jethmalani has drawn our attention to the relevant
F part of Section 9(6) of the Code which reads as under:
"9. Court of Session.-
x x
G (6) The Court of Session shall ordinarily hold its sitting at
such place or places as the High Court may, by notification,
specify; but, if, in any particular case, the Court of Session
is of opinion that it will tend to the general convenience of
the parties and witnesses to hold its sittings at any other
H place in the sessions division, it may, with the consent of
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 935
[DALVEER BHANDARI, J.]
the prosecution and the accused, sit at that place for the A
disposal of the case or the examination of any witness or
witnesses therein."
8. Mr. Jethmalani submitted that the power of changing
the venue is vested exclusively with the High Court and the State
B
Government has no say in th~ matter.
I
9. The power under Section 9(6) of the Code cannot be
exercised for a particular individual or accused and if it has to
be exercised for one individual, then according to the principle
of audi alteram partem, he has to be given hearing. Admittedly, c
no such hearing was given to the accused in this case.
10. Mr. Jethmalani referred to Section 407 of the Code
which reads as under:
"407. Power of High Court to transfer cases and D
appeals.- (1) Whenever it is made to appear to the High
Court-
(a) that.a fair and impartial inquiry or trial cannot be had
in any Criminal Court subordinate thereto, or E
(b) that some question of law of unusual difficulty is
likely to arise; or
(c) that an order under this section is required by any
provision of this Code, or will tend to the general F
convenience of the parties or witnesses, or is
expedient for the ends of justice,
it may order-
G
(i) that any offence be inquired into or tried by any
Court not qualified under sections 177 to 185 (both
inclusive), but in other respects competent to inquire
into or try such offence;
(ii) that any particular case or appeal, or class of cases H
936 SUPREME COURT REPORTS (2010] 3 S.C.R.
A or appeals, be transferred from a Criminal Court
subordinate to its authority to any other such
Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a
Court of Session; or
B
(iv) that any particular case or appeal be transferred to
and tried before itself.
(2) The High Court may act either on the report of the lower
c Court, or on the application of a party interested, or on its
own initiative:
Provided that no application shall lie to the High Court
for transferring a case from one Criminal Court to another
Criminal Court in the same sessions division, unless an
D application for such transfer has been made to the
Sessions Judge and rejected by him.
'•,
(3) Every application for an order under sub-section (1)
shall be made by motion, which shall, except when the
E applicant is the Advocate-General of the State, be
supported by affidavit or affirmation.
(4) When such application is made by an accused person,
the High Court may direct him to execute a bond, with or
without sureties, for the payment of any compensation
F
which the High Court may award under sub-section (7).
(5) Every accused person making such application shall
give to the Public Prosecutor notice in writing of the
application, together with a copy of the grounds on which
G it is made; and no order shall be made on the merits of
the application unless at least-twenty-four hours have
elapsed between the giving of such notice and the hearing
of the application.
(6) Where the application is for the transfer of a case of
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 937
[DALVEER BHANDARI, J.]
appeal from any subordinate Court, the High Court may, A
if it is satisfied that it is necessary so to do in the interests
of justice, order that, pending the disposal of the
application, the proceedings in the subordinate Court shall
be stayed, on such terms as the High Court may think fit
to impose: B
Provided that such stay shall not affect the
subordinate Court's power of remand under section 309.
(7) Where an application for an order under sub-section
(1) is dismiss~d, the High Court may, if it is of opinion that C
the application was frivolous or vexatious, order the
applicant to pay by way of compensation to any person
who has opposed the application such sum not exceeding
one thousand rupees as it may consider proper in the
circumstances of the case. D
(8) When the High Court orders under sub-section (1) that
a case be transferre,d from any Court for trial before itself,
it shall observe in such trial the same procedure which that
Court would have observed if the case had not been so E
transferred.
(9) Nothing in this section shall be deemed to affect any
order of Government under section 197."
11. Mr. Jethmalani further submitted that power under F
Section 407 of the Code can be exercised after hearing all the
concerned parties. He heavily relied on the judgment of this
court in State of West Bengal v. Anwar Ali Sarkar & Another
AIR 1952 SC 75 and particularly placed reliance on para 37
which reads as under: G
"37. Speedier trial of offences may be the reason and
motive for the legislation but it does not amount either to
a classification of offences or of cases. As pointed out by
Chakravarti J. the necessity of a speedy trial is too vague
and uncertain a criterion to form the basis of a valid and H
938' SUPREME COURT REPORTS (2010) 3 S.C.R.
A reasonable classification. In the words of Das Gupta J., it
is too indefinite as there can hardly be. any definite
objective test to determine it. In my opini0n, it is no
classification at all in the real sense of the term as it is not
based on any characteristics which are peculiar to persons·
B or to cases which are to be subject to the special
procedure prescribed by the Act. The mere fact of
classification is not sufficient to relieve a statute from the
reach of the equality clause of Article 14. To get out of its
reach it must appear that not only a classification has been
c made but also that it is one based upon a reasonable
ground on some difference which bears a just and proper -
relation to the attempted classification and is not a mere
arbitrary selection. Persons concemeCI in offences or cases
needing so-called speedier trial are entitled to inquire
"Why are they being made the subject of a law which has
D
short-circuited the normal procedure of trial; why has it
grouped them in that category and why has the law
deprived them of the protection a(ld safeguards which are
allowed in the case of accused tried under the procedure
mentioned in the Criminal Procedure Code; what makes
E
the legislature or the executive to think that their cases
need speedier trial than those of others like them?"
12. He further contended that the west Bengal Special Act
of 1950 (Special Act) gives special treatment because they
F need it in the opinion of the provincial government; in other
words, because such is the choice of their prosecutors. This
answer is neither rational nor reasonable. The only answer for
withholding from such person the protection of Article 14 of the
Constitution that could reasonably be given to these inquiries
G would be that "Of all other accused persons they are a class
by themselves and there is a reasonable difference between
them and those other persons who may have committed similar
offences." They could be told that the law regards persons guilty
of offences against the security of the State as a class in
H themselves. The Code of Criminal Procedure has by the
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 939
[DALVEER
, BHANDARI, J.]
I
process of classification prescribed different modes of A
procedure for trial of different offences. Minor offences can be
summarily tried, while for grave and heinous offences an
elaborate mode of procedure has been laid down.
13. The said Special Act suggests no reasonable basis 8
or classification, either in respect of offences or in respect of
cases. It has not laid down any yardstick or measure for the
grouping either of persons or of cases or of offences by which
measuring these groups could be distinguished from those who
are outside the purview of the Special Act. The Act has left this C
matter entirely to the unregulated discretion of the provincial
government. It has the power to pick out a case of a person
similarly situate and hand it over to the special tribunal and
leave the case of the other person in the' same circumstance
to be tried by the procedure laid down in the Code. The State
Government is authorized, if it so chooses, to hand over an D
ordinary case of simple hurt to the special tribunal, leaving the
case of dacoity with murder to be tried in the ordinary way. It is
open under this Act for the provincial government to direct that
a case of dacoity with firearms and accompanied by murder,
where the persons killed are Europeans, be tried by the Special E
Court, while exactly similar cases where the persons killed a're
Indians may be tried under the procedure of the Code.
14. According to the learned senior counsel, the appellant
cannot be denied the trial in an open court where there is F
presence of free media. He has also placed reliance on Cora
Lillian McPherson v. Oran Leo McPherson AIR 1936 Privy
Council 246 wherein it is held that "Every Court of Justice is
open to every subject of the King." (Ref.: Scott & Anr. v. Scott
(1913) AC 417). Publicity is the authentic hall-mark of judicial G
as distinct from administrative procedure, and it can be safely
hazarded that the trial of a divorce suit, a suit not entertained
by the old Ecclesiastical Courts at all, is not within any
exception.
15. Mr. Jethmalani placed strong reliance on the H
940 SUPREME COURT REPORTS [2010] 3 S.C.R.
A observation of the US Supreme Court in Richmond
Newspapers, Inc. et al v. Commonwealth of Virginia et al 65L
=
Ed 2d 973 (1980) 448 US 555. One of the most conspicuous
features of English justice, that all judicial trials are held in open
court, to which the public have free access, ... appears to have
B been the rule in England from time immemorial. This was
mentioned by F. Pollock, The Expansion of the Common Law
31-32 (1904). [See also: E. Jenks, The Book of English Law
73-74 (6th ed 1967)].
16. The learned senior counsel for the appellant further
C relied upon the following passages of the Richmond's case
(supra):
17. (Page 983) In some instances, the openness of trials
was explicitly recognized as part of the fundamental law of the
D Colony. The 1677 Concessions and Agreements of WesJ New
Jersey, for example, provided:
"That in all public courts of justice for trials of causes, civil
or criminal, any person or persons, inhabitants of the said
Province may freely come into, and attend the said courts,
E
and hear and be present, at all or any such trials as shall
be there had or passed, that justice may not be done in a
corner nor in any covert manner." [Reprinted in Sources
of Our Liberties 188 (R. Perry ed.1959). See also 1 B.
Schwartz, The Bill of Rights: A Documentary History 129
F (1971 ).]
18. (Page 985) Jeremy Bentham not only recognized the
therapeutic value of open justice but regarded it as the
keystone:
G
"Without publicity, all other checks are insufficient: in
comparison of publicity, all other checks are of small
account. Recordation, appeal, whatever other institutions
might present themselves in the character of checks, would
be found to operate rather as cloaks than checks; as
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 941
[DALVEER BHANDARI, J.]
cloaks in reality, as checks only in appearance." J. A
Bentham Rationale of Judicial Evidence 524 (1827).
19. (Page 985) The early history of open trials in part
reflects the widespread acknowledgment, long before there
were behavioral scientists, that public trials had significant B
communityI
therapeutic value.
'
20. (Pages 985-986) When a shocking crime occurs, a
community reaction of outrage and public protest often follows.
[See H. Weihofen, The Urge to Punish 130-131 (1956)].
Thereafter the open procesl?es of justice serve an important C --
prophylactic purpose, providing an outlet for community
concern, hostility, and emotion. Without an awareness that
society's responses to criminal conduct are underway, natural
human reactions of outrage and protest are frustrated, and may
manifest themselves in some form of vengeful "self-help," as D
indeed they did regularly in the activities of vigilante
"committees" on our frontiers. ''The accusation and conviction
or acquittal, as much perhaps as the execution of punishment,
operate to restore the imbalance which was created by the
offense or public charge, to reaffirm the temporarily lost feeling E
of security and, perhaps, to satisfy that latent 'urge to punish."'
Mueller, Problems Posed by Publicity to Crime and Criminal
Proceedings, 110 U Pa L Rev 1, 6 (1961)."
21. (Page 987) From this unbroken, uncontradicted history, F
supported by reasons as valid today as in centuries past, we
are bound to conclude that a presumption of openness inheres
in the very nature of a criminal trial under our system of justice.
This conclusion is hardly novel; without a direct holding· on the
issue, the Court has voiced its recognition of it in a variety of
contexts over the years. G
22. (Page 999) This Court too has persistently defended
the public character of the trial process. In re Oliver established .
that the Due Process Clause of the Fourteenth Amendment
iorbids elasad criminal trials. Noting the "universal rule against H
942 SUPREME COURT REPORTS [2010] 3 S.C.R.
A secret trials," 333 U.S. at 266, 92 L Ed 682, 68 S Ct 499, the
Court held that
"In view of this nation's historic distrust of secret
proceedings, their inherent dangers to freedom, and the
universal requirement of our federal and state governments
B
that criminal trials be public, the Fourteenth Amendment's
guarantee that no one shall be deprived of his liberty
without due process of law means, at least, that an
accused cannot be thus sentenced to prison." Id., at 273,
92 L Ed 682, 68 S Ct 499.
c
23. (Page 1000) Tradition, contemporaneous state
practice, and this Court's own decisions manifest a common
understanding that "[a] trial is a public event. What transpires
in the court room is public property." Craig v. Hamey, 331 US
D 367, 374, 91 L Ed 1546, 67 S Ct 1249 (1947).
24. (Page 1000-1001) Publicity serves to advance several
of the particular purposes of the trial (and, indeed, the judicial)
process. Open trials play a fundamental role in furthering the
E efforts of our judicial system to assure the criminal defendant
a fair and accurate adjudication of guilt or innocence. [See, e.g.,
Estes v. Texas, 381 U.S., at 538-539, 14 L Ed 2nd 543, 85 S
Ct 1628]. But, as a feature of our governing system of justice,
the trial process serves other, broadly political, interests, and
public access advances these objectives as well. To that extent,
F trial access possesses specific structural significance.
25. (Page 1001) Secrecy is profoundly inimical to this
demonstrative purpose of the trial process. Open trials assure
the public that procedural rights are respected, and that justice
G is ,afforded equally. Closed trials breed suspicion of prejudice
and arbitrariness, which in turn spawns disrespect for law.
Pub!ic access is essential, therefore, if trial adjudication is to
achieve the objective of maintaining public confidence in the
administration of justice. [See Gannett, supra at 428-429, 61
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 943
[DALVEER BHANDARI, J.]
L Ed 2d 608, 99 S Ct 2898 (Blackmum, J., concurring and A
dissenting).
26. (Page 1003) Shrewd legal observers have averred that:
"open examination of witnesses viva voce, in the presence
of all mankind, is much more conducive to the clearing up 8
of truth than the private and secret examination ... where
a witness may frequently depose that in private which he
will be ashamed to testify in a public and solemn tribunal."
3 Blackstone (supra) at *373.
c
27. Mr. Jethmalani also submitted that Kehar Singh &
Others v. State (Delhi Administration) (1988) 3 SCC 609 has
no relevance in the present case. In the said case, the shifting
of the trial in jail was caused because of extraordinary situation
which happened after assassination of Mrs. Indira Gandhi and D
that cannot be compared with the present situation. He placed
reliance on the following paragraph:
'204. In Naresh Shridhar Mirajkar v. State of Maharashtra
(1966) 3 SCR 744 this Court had an occasion to consider
the validity of a judicial verdict of the High Court of Bombay E
made under the inherent powers. There the learned Judge
made an oral order directing the press not to publish the
evidence of a witness given in the course of proceedings.
That order was challenged by a journalist and others before
this Court on the ground that their fundamental rights F
guaranteed under Article 19(1 )(a) and (g) have been
violated. Repelling the contention, Gajendragadkar, C.J.,
speaking for the majority view, said: (SCR pp. 760-61)
"The argument that the impugned order affects the G
fundamental rights of the appellants under Article
19(1), is based on a complete misconception about
the true nature and character of judicial process and
of judicial decision . . . . But it is singularly
inappropriate to assume that a judicial decision H
944 SUPREME COURT REPORTS [2010] 3 S.C.R.
·A pronounced by a judge of competent jurisdiction in
or in relation to a matter brought before him for
adjudication can affect the fundamental rights of the
citizens under Article 19(1 ). What the judicial
decision purports to do is to decide the controversy
B between the parties brought before the court and
nothing more. If this basic and essential aspect of
the judicial process is borne in mind, it would be
plain that the judicial verdict pronounced by court
in or in relation to a matter brought before it for its
c decisions cannot be said to affect the fundamental
rights of citizens under Article 19(1 )."
28. Mr. Jethmalani also placed reliance on Union of India
& Another v. Tulsiram Patel & Others (1985) 3 SCC 398 para
92 in which this Court relied on E. P. Royappa v. State of
D Tamil Nadu (1974) 4 SCC 3. Para 85 of the said judgment
reads as under:
"... Article 14 is the genus while Article 16 is a species.
Article 16 gives effect to the doctrine of equality in all
E matters relating to public employment. The basic principle
which, therefore, informs both Articles 14 and 16 is
equality and inhibition against discrimination. Now, what
is the content and reach of this great equalising principle?
It is a founding faith, to use the words of Bose, J., 'a way
F of life', and it must not be subjected to a narrow pedantic
or lexicographic approach. We cannot countenance any
attempt to truncate its all-embracing scope and meaning,
for to do so would be to violate its activist magnitude.
Equality is a dynamic concept with many aspects and
dimensions and it cannot be 'cribbed, cabined and
G
confined' within traditional and doctrinaire limits. From a
positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic while
the other, to the whim and caprice of an absolute
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 945
[DALVEER BHANDARI, J.]
'
monarch. Where an act is arbitrary, it is implicit in it that A
rr is unequal both according to political logic and
constitutional law and is therefore violative of Article 14,
and if it affects any matter relating to public employment,
it is also violative of Article 16. Articles 14 and 16 strike
at arbitrariness in State action and ensure fairness and B
equality of treatment. They require that State action must
be based on valid relevant principles applicable alike to
all similarly situate and it must not be guided by any
extraneous or irrelevant considerations because that
would be denial of equality. Where the operative reason c
for State action, as distinguished from motive inducing /
from the antechamber of the mind, is not legitimate and
relevant but is extraneous and outside the area of
permissible considerations, it would amount to mala fide
exercise of power and that is hit by Articles 14 and 16. . D
Mala fide exercise of power and arbitrariness are different
lethal radiations emanating from the same vice: in fact the
latter comprehends the former. Both are inhibited by
Articles 14 and 16." (emphasis supplied)
29. Mr. Jethmalani further placed reliance on the following E
paragraph:
"93. Bhagwati, J., reaffirmed in Maneka Gandhi case
(1978)1 sec 248 what he had said in Royappa case
(supra) in these words (at pp. 673-74): (SCC p. 283, para F
7):
"Now, the question immediately arises as to what is
the requirement of Article 14: what is the content and reach
of the great equalising principle enunciated in this article?
There can be no doubt that it is a founding faith of the G
Constitution. It is indeed the pillar on which rests securely
the foundation of our democratic republic. And, therefore,
it must not be subjected to a narrow, pedantic or
lexicographic approach. No attempt should be made to
truncate its all embracing scope and meaning, for to do H
946 SUPREME COURT REPORTS [2010] 3 S.C.R.
A so would be to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions and
it cannot be imprisoned within traditional and doctrinaire
limits. We must reiterate here what was pointed out by the
majority in E.P. Royappa v. State of T.N. namely, that from
B a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic, while
the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal
c both according to political logic and constitutional law and
is therefore violative of Article 14. Arlicle 14 strikes at
arbitrariness in State action and ensures fairness and
equality of treatment. The principle of reasonableness,
which legally as well as philosophically, is an essential
element of equality or non-arbitrariness pervades Arlicle
D
14 like a brooding omnipresence ... (emphasis supplied)
30. In the said judgment, Bhagwati, J., further observed (at
pp. 676-77): (SCC p. 286, para 10)
E "Now, if this be the test of applicability of the doctrine
of natural justice, there can be no distinction between a
quasi-judicial function and an administrative function for
this purpose. The aim of both administrative inquiry as well
as quasi-judicial inquiry is to arrive at a just decision and
F if a rule of natural justice is calculated to secure justice, or
to put it negatively, to prevent miscarriage of justice, it is
difficult to see why it should be applicable to quasi-judicial
inquiry and not to administrative inquiry. It must logically
apply to both. On what principle can distinction be made
between one and the other? Can it be said that the
G
requirement of 'fair-play in actions' is any the less in an
administrative inquiry than in a quasi-judicial one?
Sometimes an unjust decision in an administrative inquiry
may have far more serious consequences than a decision
in a quasi-judicial inquiry and hence the rules of natural
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 947
[DALVEER BHANDARI, J.]
justice must apply equally in an administrative inquiry A
which entails civil consequences." (emphasis supplied)
31. Mr. Jethmalani placed reliance on Delhi Transport
Corporation v. D. T. C. Mazdoor Congress & Others 1991
(Supp) 1 SCC 600 wherein vide paras 166, 167 and 168, this B
Court observed thus:
"166. It is well settled that even if there is no specific
provision in a statute or rules made thereunder for showing
cause against action proposed to be taken against an
individual, which affects the right of that individual the duty C
to give reasonable gpportunity to be heard will be implied
from the nature of the function to be performed by the
authority which has the power to take punitive or damaging
action.
D
167. An order impounding a passport must be made
quasi-judicially. li'lis was not done in the present case. It
cannot be·said that a good enough reason has been
shown to exist for impounding the passport of the appellant.
The appellant had no opportunity of showing that the E
ground for impounding it given in this Court either does not
exist or has no bearing on public interest or that the public
interest can be better served in some other manner. The
order should be quashed and the respondent should be
directed to give an opportunity to the appellant to show
cause against any proposed action on such grounds as
F
may be available.
168. Even executive_authorities when taking
administrative action which involves any deprivation of or
restriction on inherent fundamental rights of citizens must G
take care to see that justice is not only done but manifestly
appears to be done. They have a duty to proceed in a way
which is free from even the appearance of arbitrariness,
unreasonableness or unfairness~ They have to act in a
H
948 SUPREME COURT REPORTS [2010] 3 S.C.R.
A manner which is patently impartial and meets the
requirements of natural justice."
32. Reliance was also placed on D.K. Yadav v. J.M.A.
lndustrie_s_Ltd. (1993).3 sec 259, wherein vide para 10, the
court observed thus: "'
B
"10. In State of WB. v. Anwar Ali Sarkar AIR 1952
SC 75 per majority, a seven-Judge Bench held that the rule
of procedure laid down by law comes as much within the
purview of Article 14 of the Constitution as any rule of
c substantive law. In Maneka Gandhi v. Union of India
(1978) 1 sec 248 another Bench of seven Judges held
that the substantive and procedural laws and action taken
under them will have to pass the test under Article 14. The
test of reason and justice cannot be abstract. They cannot
D be divorced from the needs of the nation. The tests have
to be pragmatic otherwise they would cease to be
reasonable. The procedure prescribed must be just, fair
and reasonable even though there is no specific provision
in a statute or rules made thereunder for showing cause
E against action proposed to be taken against an individual,
which affects the right of that individual. The duty to give
reasonable opportunity to be heard will be implied from the
nature of the function to be performed by the authority which
has the power to take punitive or damaging action. Even
F executive authorities which take administrative action
involving any deprivation of or restriction on inherent
fundamental rights of citizens, must take care to see that
justice is not only done but manifestly appears to be done.
They have a duty to proceed in a way which is free from
even the appearance of arbitrariness, unreasonableness ·
G
or unfairness. They have to act in a manner which is
patently impartial and meets the requirements of natural
justice."
33. Learned counsel for the appellant referred to the case
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 949
[DALVEER BHANDARI, J.]
of Krishan Lal v. State of J&K (1994) 4 SCC 422, wherein vide . A
para 28 the court observed thus:
"28. The aforesaid, however, is not sufficient to
demand setting aside of the dismissal order in this
proceeding itself because what has been stated in ECIL B
case (1993) 4 sec 727 in this context would nonetheless
apply. This is for the reason that violation of natural justice
which was dealt with in that case, -also renders an order
invalid despite which the Constitution Bench did not
concede that the order of dismissal passed without
furnishing copy of the inquiry officer's report would be C
enough to set aside the order.......... "
34. Mr. Ranjit Kumar, learned senior counsel appearing for.
the State submitted that the appellant is involved in a large
number of criminal cases, the details of which are as under: D
"(i) Session Trial No. 287/2007
(ii) Session Trial No. 441/2006
(iii) Session Trial No. 419/2006 E
(iv) Siwan Town P.W. Case No. 11/2001
(v) Ander P.S. case - 41/1999
(vi) Ander P.S. case - "10/1998 F
(vii)- - Siwan Muffassil case no. 61/1990
(viii) Session Trial No. 99/1997; and
(ix) Session Trial No. 63/2004" G
35. Mr. Kumar also submitted that even by transferring the
trial, no prejudice whatsoever has been caused to the appellant.
He submitted that the venue is just one kilometer away from
the Sessions Court, therefore, no inconvenience or prejudice
H
950 SUPREME COURT REPORTS [2010] 3 S.C.R.
A is caused to any one. No one has been denied entry. On the
contrary, a large number of advocates and press people have
attended the hearings and they have been regularly reporting
this matter. He also referred to the notification dated 20th May,
2006 issued by the Patna High Court by which trial pending
8 against the appellant has been expedited. The notification
reads as under:
"No.184A:- In exercise of powers conferred under sub-
section (6) of Section 9 of the Criminal Procedure Code,
1973, the High Court has been pleased to decide that the
c premises of the District Jail, Siwan will be the place of
sitting of Court of Session for the Sessions Division of
Siwan for expeditious trial of sessions cases pending
against Md. Sahabuddin.
D By Order of the High Court
Sd/-
Registrar General
E Memo No.5146-49 dated, Patna the 20th, May, 2006.
Copy forwarded to the District and Sessions Judge,
Siwan!The Chief Judicial Magistrate, Siwan/ The Secretary
to the Government of Bihar, Law (Judicial) Department,
Patna/The Secretary te the Government of Bihar,
F Department of Personnel and Administrative Reforms,
Patna for information and necessary action.
By Order of the High Court
Sd/-
Registrar General"
G
36. Mr. Kumar, learned senior counsel further submitted
that the two notifications were subsequently issued by the
Government of Bihar because the premises were not under the
control of the High Court. Where the premises are not under
H the control of the High Court, the notification has also to be
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 951
[DALVEER BHANDARI, J.]
issued by the State Government. The establishment cf the court A
can be done by the State Government in consultation with the
High Court. He referred to the notification dated 20.5.2006 and
notifications corresponding to S.O. Nos.80 and 82 both dated
7.6.2006. The notifications establishing the court were issued
in consonance with the scheme of the Act. B
37. Mr. Ranjit Kumar has drawn our attention to the counter
affidavit filed by the State in extenso. In the said counter affidavit
filed by the State it is mentioned that the reign of terror created
by the appellant and his 'private army' in the last two decades C
is beyond imagination. Some of the notorious crimes
committed by the appellant and his gang of criminals and the
extent to which he has been interfering .with the administration
of justice, has been enumerated in the counter affidavit. It would
be pertinent to recapitulate the same as under:
D
"xxx )()()( )()()(
(a) That on 03.5.1996 the petitioner along with his
associates fired upon the then Superintendent of Police,
Shri S. K. Singhal, IPS with sophisticated arms. In this E
case, bearing S.T. No. 320/2001, the petitioner and his two
associates have been found guilty and sentenced to
undergo rigorous imprisonment for 10 years.
(b) That during a raid conducted on 16.03.2001 in the
house of the petitioner, the accused-petitioner and his F
private army fired upon the raiding party and burnt the
vehicles of the Deputy Inspector General of Police, Saran
Range, District Magistrate Siwan and Superintendent of
Police Siwan. These criminals fired more than 100 rounds
of ammunition from arms including AK 47 and AK 56 etc. G
In that firing, one constable was killed and several
constables were injured. In this raid, huge quantity of
ammunitions were recovered from the house of the
accused. An FIR bearing Case No. 32 of 2001 was
registered in the Hussainganj Police Station." H
952 SUPREME COURT REPORTS [2010] 3 S.C.R.
A (c) That in another raid conducted in 2005 on the order of
,,the Bihar Military Force-I, a large number of arms and
ammunition and other articles were recovered from the
house of the accused. Pursuant to this raid, an FIR bearing
Case Nos. 41 to 44/2005 was registered in the
B Hussainganj Police Station.
(d) That when the petitioner was being shifted from Siwan
Jail to Beur Jail Patna pursuant to his arrest on
10.02.2005, the petitioner did not sit in the vehicle of the
Jail Administration and forcibly sat in a private vehicle. He
c first visited his village home at Pratapur in flagrant violation
of the directions of the jail administration and the police
escort party. All along the way he did as he chose and
before finally arriving at the Beur Jail Patna, he even visited
his relative and minister Sh. lzazul Haq at the government
D quarter. Resistance of the escorting police party were
brushed aside by threatening them with dire consequences
and use of brute force to carryout the above illegal acts.
(e) That in Sessions Trial No. 63 of 2002 accused and his
E gang fired upon Munna Choudhary. He was kidnapped in
injured conditions and was thereafter killed and his body
was disposed off. Such was the terror of the accused
person that when the case was tried in the general court,
21 prosecution witnesses including the parents and sisters
F of the deceased as well as the investigating officers turned
hostile due to fear created by the petitioner. Presently, this
case is being tried in the Court at Siwan Jail, where the
father and mother of the deceased have filed their affidavits
stating that they were coerced and threatened by the
petitioner and his gang, therefore, they could not depose
G
against him.
(f) That the distance between the District Court Siwan and
the Court at Siwan Jail is about one kilometer. From the
jail gate to District Court there is one way which passes
H through narrow bridge over a river. This area is densely
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 953
[::::>ALVEER BHANDARI, J.]
populated and is a market area of the town. Whenever, the A
accused was produced in the District Court in the past,
there used to be large gathering of criminals. It was always
very difficult for the District Administration to control the
situation. During the trial, thousands of criminals and armed
men used to enter District Court premises and also inside B
the Court Room in support of the accused and created an
atmosphere of terror in the minds of the prosecution
witnesses. Consequently, no one dared to depose truthfully
against the accused which led to his acquittal in more than
16 cases, one after the other. c
(g) That prior to the constitution of the Court in the jail
premises, when the petitioner was remanded to Siwan Jail
in various criminal cases from time to time, he never co-
operated and got himself produced in the concerned court,
situated about one kilometer away from Siwan Jail, on the D
dates fixed for his appearance. Perusal of the order sheet
of 9 cases which are undergoing trial in the Court shows
that on only 24% occasions, the petitioner co-operated
and got himself produced in the trial courts situated in court
campus Siwan. On 76% occasions, he did not cooperate E
and consequently could not be produced from the Jail
before the various trial courts. It is apparent that in most
of them, the petitioner appeared before the Trial Court only
once, at the time of remand or.when he surrendered before
the Court for getting himself remanded in the case. On F
several subsequent occasions, on one pretext or the other,
he did not appear before the concerned court despite
being in Siwan Jail."
38. It is also incorporated in the counter affidavit filed by G
the State that by the criminal acts of the appellant reign of terror
had spread. The appellant has also earned enemies who would
like to seize upon an opportunity and endanger his life if the
trial is conducted in general court. Simultaneously, criminals
owing allegiance to the appellant are likely to create law and
H
954 SUPREME COURT REPORTS [2010] 3 S.C.R.
A order problem including communal tension and endanger the
life of the common public during his trial in general court.
39. It is further incorporated in the counter affidavit that in
view of the aforementioned background and after assessing
the entire situation, the then District Magistrate, Siwan informed
8
the State Government that trial is not possible in the District
Court of Siwan against the accused person. Pursuant to the
report of the District Magistrate, the Law Secretary, Government
of Bihar made a request to the Patna High Court for designation
of Court of Session and Court of Judicial Magistrate, 1st Class
C inside the Siwan Jail Premises for expeditious trial of the cases
pending against the appellant. After evaluating and assessing
the entire situation, the notification was issued by the Patna
High Court as also by the State Government with the
consultation of Patna High Court for sitting and establishment
D of courts for expeditious trial of cases pending against the
appellant.
40. Mr. Ranjit Kumar next submitted that Notification No.
184A dated 20.5.2006 was issued by the Patna High Court in
E exercise of its power conferred under section 9(6) of the Code.
Mr. Kumar further submitted that Section 9(6) is in two parts.
First part pertains to the statutory power of the High Court and
the Second part pertains to the judicial power of the Sessions
Court. Notification No.184A dt.20.05.2006 pertains to the first
F part.
41. According to the learned counsel for the State, the audi
a/teram partem rule would not be applicable to the first part but
the second part. Therefore, the challenge by the appellant on
the ground of breach of the audi alteram partem rule is
G unsustainable.
42. Mr. Kumar further submitted that immediately after the
notification on 20.5.2006, on the same day, the High Court
through its Registrar General wrote a letter asking for the State
H . of Bihar to publish the notification in the official gazette. Delay
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 955
[DALVEER BHANDARI, J.]
in the publication was not at the instance of the High Court. The A
appellant could not assail the notification of the High Court on
this ground as no such plea or ground was raised either in the
High Court or in this appeal.
43. Mr. Kumar also contended that the court inside the Jail
8
was created by tt:e High CoU,rt through its Notification dated
20.05.2006. Since the jail premises did not belong to the High
Court, the State of Bihar issued two Notifications dated
7.6.2006 to facilitate the smooth functioning of the said court
which had been created by the High Court. In any case, the
administrative/statutory orders made by the High Court are C
given effect to by the State Government (e.g. appointments.
terminations, dismissals, retirements etc.)
44. Mr. Kumar further contended that the Sessions Court
was created by the State and not by the High Court is contrary D
to the record. The notification dt.7.6.2006 makes it clear that it
was issued i!l pursuance to Notification No.184A dated
20.5.2006 of the Patna High Court.
45. Mr. Kumar also brought to the attention of the court that E
the appellant has faced trials in 43 cases before the Magistrates
and the Sessions' Courts. Out of the 30 cases before the
Magistrates, he has been convicted in 3 and acquitted in 1 and
26 remaining cases are pending. Out of the 13 cases before
the Sessions Court, he has been convicted in 3, acquitted in 3 F
and 7 cases are st~I pending. '
46. Mr. Kumar also contended that the Court premises
inside the Jail are open to all. The appellant is being
represented through 38 lawyers. Apart from all his lawyers and
every other person wanting to attend has been allowed to do G
so. The press and the public have also been allowed entry. In
fact, the appellant and his supporters had objected to the
presence of the reporters. Therefore, the allegation of denial
of a fair and open trial is devoid of any substance.
H
956 SUPREME COURT REPORTS [2010] 3 S.C.R.
A 47. Mr. Kumar further submitted that the appellant is a
notorious criminal and it is virtually impossible to hold his trials .
in the normal court premises. The atmosphere of terror let loose
by the appellant and his supporters had jeopardized the
functioning of the court warranting trials of his cases inside the
B jail. The Superintendent of Police formed ah opinion and
forwarded it to the District Magistrate. The State drew the
attention of the High Court and the High Court decided to act
on it. There is nothing sinister or clandestine in this. The
opening and the closing lines of the opinion forwarded by the
c Superintendent of Police of the District to the District
Magistrate speak of the desire of the High Court qua trial of
the appellant.
48. He further submitted that during the course of the
hearing, the appellant was permitted inspection of the High
D Court records. Based on it, the appellant has set out a new case
during the course of arguments in rejoinder.
49. According to the learned counsel for the State, the
submission of the appellant that there was variance between
E the Notification No. 184A in English and the Notification No.184
Ni in Hindi is wholly untenable. (This has been explained both
by the State and the High Court to mean 'appointment' in
English and 'niyukti' in Hindi.)
50 .. L::earned counsel for the State further submitted that the
F contention of the appellant that absence of a serial order in the
publication of 16.8.2006 makes it suspicious is also
unsustainable.
51. Mr. Kumar also contended that the State Government
G issued notification's for establishing courts in jail only after
issuance of the Notification No. 184A dated 20.5.2006 by the
High Court is fully proved from the following correspondence:
a. .· Letter No.5137 dated 20th May 2006 from the
"Registrar General to the Secretary, Department of
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 957
[DALVEER BHANDARI, J.]
Personnel and Administrative Reforms, State of A
Bihar, requesting that the State Government be
moved to issue the necessary notification to give
effect to the transfer to Siwan of one Shri Gyaneshar
Singh as Additional and District Sessions Judge in
the Court being constituted inside the District Jail, B
Siwan for expediting the trial for sessions case
pending for trail against the appellant.
b. Letter No.5138 dated 20th May, 2006 was sent to
the Law Secretary as a copy of the letter at SI. No. 1. C
c. Letter No.5139 was addressed to the Secretary,
Law Department by the Registrar General dated
20th May, 2006 informing that the High Court had
considered the matter regarding establishment of
a Special Court of Judicial Magistrate, First Class D
inside the District Jail, Siwan and expedite the
proposal of the State Government for such
establishment for trial of cases pending against the
appellant.
E
d. Letter No.5140 dated 2oth May, 2006 was a copy
of the aforesaid letter at Sl.No.3 forwarded to the
Secretary, Department of Personnel and
Administrative Reforms for information and
necessary action.
F
e. Letter No.5141 of 20th May, 2006 was written to
the Secretary, Government of Bihar, Department of
Personnel and Administrative Reforms requesting
that Shri Vishwa Vibhuti Gupta, Judicial Magistrate
First Class, Siwan designated as presiding officer G
of the Judicial Magistrate First Class being
constituted inside the District Jail, Siwan for
expeditious trial of pending cases of the appellant.
/. The Letter No.5142 of 20th May, 2006 being the H
958 SUPREME COURT REPORTS [2010] 3 S.C.R.
A copy of the letter at Sl.No.5 was sent to the
Secretary (Law). Judicial Department for
information and necessary action.
g. Letter No.5143 dated 20th May 2006 was
B addressed by the High Court to the Secretary
(Law), Judicial Department informing that the High
Court having considered the matter was pleased to
accept the proposal of the State Government for
establishment of a special court of Additional --
c District and Sessions Judge inside the District Jail,
Siwan for expeditious trial of cases against the
appellant.
I
h. Letter No.5144 dated 20th May 2006 being the
copy of letter at SI. No. 7 was sent by the High Court
D to the Secretary, Department of Personnel and
Administrative Reforms for information and
necessary action.
i. Letter No.5145 dated 20th May, 2006 was sent by
E the Registrar General of the High Court to
Superintendent, Government Printing Press,
Gulzarbagh for publication of the notification
No.184A dated 20th May, 2006 in the next issue
of Bihar gazette (copy of this letter was also
F submitted by the Counsel for appellant in the High
Court during the course of hearing on the last day).
J. The Patna High Court notification dated 20th May,
2006 issued under Section 9(6) of the Code was
forwarded by the Registrar General of the High
G Court vide letter Nos.5146-49 of even date to the
District and Sessions Judge/The Chief Judicial
Magistrate, Siwan/Secretary to the Government of
Bihar (Law), Judicial Department, the Secretary,
Department of Personnel and Administrative
H Reforms for information and necessary action.
MD. SHAHABUDDIN v. STATE OF. BIHAR & ORS. 959
[DALVEER BHANDARI, J.]
52. It will, thus, be seen from the above chronology that A
after the Hig'h Court took the decision to establish a Court of
Additional District and Sessions Judge and of the Judicial
Magistrate First Class in the Siwan District Jail, necessary
correspondence/instruments/requests were sent by the High
Court for implementation of the decision of the High Court in B
seriatim from letter Sl.Nos.5137-5138, 5139-5140, 5141-5142,
5143-5144, 5145 and 5146-5149. This full series of
correspondence to give effect to the decision of the High Court
was brought into operation which ultimately culminated in the
two Notifications issued by the State Government on 7th June, C
2006 respectively and also culminated in the Notification of the
20th May 2006 being gazetted on 16th August, 2006. There
is, therefore, no scope for any person, leave alone the appellant,
to contend that the decision was not of the High Court or High
Court never applied its mind. D
53. Learned counsel for the State further submitted that the
argument that Section 462 of the Code only deals with a wrong
court and not a wrong place is untenable. A reading of Section
462 categorically shows that the title of the section speaks of
proceedings in wrong place but the substantive portion of the E
Section speaks of the wrong Sessions Division, District, Sub-
Division or other local area, unless it appears that such an error
in fact occasioned a failure of justice.
54. The decision rendered in State of Karnataka v. F
Kuppuswamy Gownder & Others (1987) 2 SCC 74 placed
before the Court fully demolishes the contention of the appellant.
Further, in any case the court of the Sessions Division within
the compound of the Siwan Jail is not a wrong place for the
purpose of holding the trial. The same has been duly notified. G
55. The argument qua Section 465 Cr.P.C. that the
notification dated 20th May, 2006 saying "other proceedings
before and during the trial" and therefore, section 465 would
not apply is totally devoid of any merit. Firstly, as per the
H
960 SUPREME COURT REPORTS [2010] 3 S.C.R.
.
A admission of the appellant himself, judicial proceedings against
him had started in several cases and trials were going on, and
therefore, it would come within the purview of words 'before or
during the trial'. The emphasis of the State is on 'during trial'.
Secondly, the words 'other proceedings before and during trial"
B would include the notification issued by the High Court and
given effect to by the State Government by virtue of the
constitutional provisions in Chapter-VI of the Constitution
relating to Subordinate Courts and the notification is in the
nature of a sanction to prosecute the appellant within the Siwan
c Jail premises in the courts of Sessions Diliiision and the Judicial
Magistrate. The notification issued, therefore, in other
proceedings during the trial would clearly come within the
purview of Section 465 of the Code. It would also come within
the words 'irregularities in any sanction for the prosecution'. If
the arguments of the appellant were to be upheld that the
0
notification is bad because of non-gazetting thereof, prior to the
State gazette notification inasmuch as the notification of the
High Court having been issued on 16th August, 2006, it is
stated that the delay, if any, would only amount to an irregularity
and nothing more. Even for the said irregularity the appellant
E would have to lay foundation in the pleadings and prove to the
court that there has been a failure of justice in his case.
56. In fact the appellant himself admitted in the summary
of submissions in rejoinder that new points could be raised 'so
F long as they did not cause surprise to the other side' or at
another place 'new point must be capable of being disposed
off on the existing record or additional' record, the aforesaid is
not open to any challenge'. The learned counsel for the State-
respondent submitted that the argument definitely raised
G surprise to the State Government because had such an
argument been raised, both the State and High Court would
have filed counter-affidavits. It is for the appellant to prove his
allegations. He, having not even pleaded, cannot be allowed
to raise new point at this stage.
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 961
[DALVEER BHANDARI, J.]
57. A notification empowering a Sessions Court to sit and A
hold a trial inside the jail is not outside the purview of Section
465 of the Code. It would come within the meaning of other
proceedings as explained above during a trial, because as per
the admission of the appellant the trial has already been started.
B
58. The argument qua exercise of power for transfer of
proceedings could only be done under Section 407 of the Code
after giving adequate opportunity of hearing to the appellant has
been answered against the appellant by this court in Ranbir
Singh v. State of Bihar (1995) 4 SCC page 392. In para 13 it C
has been specifically said -
"We are unable to share the above view of Mr. Jethmalani.
So long as power can be and is exercised purely for
administrative exigency without impinging upon an
prejudicially affecting the rights or interests of the parties D
to any judicial proceeding we do not find ahy reason to
hold that administrative powers must yield place to judicial
powers simply because in a given circumstance they co-
exist. On the contrary, the present case illustrates how
exercise of administrative powers were more expedient, E
effective and efficacious. If the High Court had intended
to exercise its judicial power of transfer invoking Section
407 of the Code it would have necessitated compliance
with all the procedural formalities thereof, besides
providing adequate opportunity to the parties of a proper F
hearing which, resultantly, would have not only delayed the
trial but further incarceration of some of the accused, it is
obvious, therefore, that by invoking its power of
superintendence, instead of judicial powers, the High Court
not only redressed the grievances of the accused and other G
connected with the trial but did it with utmost dispatch."
59. Mr. Kumar placed reliance on the case of Zahira
Habibullah H. Shaikh & Another v. State of Gujarat & Others
(2004) 4 SCC 158, particularly on Para 36 of the judgment. The
relevant portion of Para 36 of the judgment reads as under: H
962 SUPREME COURT REPORTS [2010) 3 S.C.R.
- !
'
IA "36. . ................ Each one has an inbuilt right to be dealt
with fairly in a criminal trial. Denial of a fair trial is as much
injustice to the accused as is to the victim and the society.
Fair trial obviously would mean a trial before an impartial
Judge, a fair prosecutor and atmosphere of judicial calm.
B Fair trial means a trial in which bias or prejudice for or
against the accused, the witnesses, ()r the cause which is
being tried is eliminated. If the witnesses get threatened
or are forced to give false evidence that also would not
result in a fair trial. The failure to hear material witnesses
c is certainly denial of fair trial."
60. Mr. Kumar further submitted that when the notification
of 20th May, 2006 was issued by the High Court, it is expected
that the judges of the High Court would take care of all aspects
including the interest of the accused. According to him, section
D 9(6) of the Code is in two parts. The first part is when the
notification is issued by the High Court, then it is presumed that
they would take into consideration the interests of the parties
including the accused before issuing the notification. In the
second part, the Court of Session may decide to hold its sitting
E at any place in the session. They can do so only after hearing
the parties and that order of the Court of Session is a judicial
order and order issued by the High Court is an administrative
order.
F 61. He submitted that the Jail is an open court as long as
there are no restrictions and right of the accused to fair trial is
not compromised. The concept of open court is where there is
access of every one.
62. He placed reliance on a Division Bench judgment of
G the Delhi High Court in Ranjit Singh v. Hon'ble the Chief
Justice & Others ILR 1985 Delhi 388. In this case, the court
held that when the notification is issued by the High Court, then
there is no necessity of issuing notice to the accused before
passing an order to fix a place of holding the trial. The relevant
H observation made by the Division Bench reads as under:
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 963
[DALVEER BHANDARI, J.]
"7 ........... Surely, it is a reasonable presumption to A
hold that when the Full Court exercised its power, like in
the present case, directing that the Court of Session may
hold its sitting at a place other than its ordinary place of
sitting considerations of the interest of justice, expeditious
hearing of the trial and the requirement of a fair and open B
trial are the considerations which have weighed with the
High Court in issuing the impugned notification. It should
be borne in mind that very rarely does the High Court
exercise its power to direct any particular case to be tried
in jail. When it does so it is done only because of c
overwhelming consideration of public order, internal
security and a realization that holding of trial outside jail
may be held in such a surcharged atmosphere as to
completely spoil and vitiate the Court atmosphere where
it will not be possible to have a calm, detached and fair D
trial. It is these considerations which necessitated the High
Court ~o issue the impugned notification. Decision is taken
on these policy considerations and the question of giving
a hearing to the accused before issuing a notification is
totally out of place in such matters. These are matters
which evidently have to be left to the good sense and to E
the impartiality of the Full Court in taking a decision in a
particular case .......... "
63. Mr. Kumar also placed reliance on the case of Naresh
Shridhar Mirajkar (supra). In this case, the court emphasized F
the importance of public trial, but at the same time noted that
they cannot overlook the fact that the primary function of judiciary .
is to do justice between the parties and that it was difficult to
accede to the proposition that there can be no exception to the
rule that all cases must be tried in open court. G
64. Mr. Kumar contended that all the questions which have
been raised by Mr. Ram Jethmalani were raised before this
Court in the case of Kehar Singh's case (supra). This Court
has answered to all those questions in the said case against
H
964 SUPREME COURT REPORTS [201 O] 3 S.C.R.
A the appellant herein. In this case, a three Judge Bench of this
Court has given three separate judgments. Reliance has been
particularly placed on paragraphs 21 to 24. On interpretation
of section 9(6) of the Code, Oza, J. in paras 21 and 22 at pages
635 to 636 observed as under:
B
"21. . .............. .
On the basis of this language one thing is clear that so far
as the High Court is concerned it has the jurisdiction to
specify the place or places where ordinarily a Court of
c Session may sit within the division. So far as any particular
case is to be taken at a place other than the normal place
of sitting it is only permissible under the second part of sub-
clause with the consent of parties and that decision has
to be taken by the trial court itself. It appears that seeing
D the difficulty the Uttar Pradesh amended the provision
further by adding a proviso which reads:
Provided that the court of Session may hold, or the
High Court may, direct the Court of Session to hold,
its sitting in any particular case at any place in the
E
sessions division, where it appears expedient to do
so for considerations of internal security or public
order, and in such cases, the consent of the
prosecution and accused shall not be necessary.
F 22. But it is certain that if this proviso is not on the statute
book applicable to Delhi, it can not be used as the High
Court has used to interpret it. That apart, if we look at the
notification from a different angle the contention advanced
by the learned Counsel for the appellants ceases to have
G any force. Whatever be the terms of the notification, it is
not disputed that it is a notification issued by the Delhi High
Court .under Section 9 Sub-clause (6) Cr.P.C. and
thereunder the High Court could do nothing more or less
than what it has the authority to do. Therefore, the said
H notification of the High Court could be taken to have
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 965
[DALVEER BHANDARI, J.]
notified that Tihar Jail is also one of the places of sitting A
of the Sessions Court in the Sessions division ordinarily.
That means apart from the two places Tis Hazari and the
New Delhi, the High Court by notification also notified Tihar
Jail as one of the places where ordinarily a Sessions Court
could hold its sittings. In this view of the matter, there is B
no error if the Sessions trial is held in Tihar Jail after such
a notification has been issued by the High Court."
65. The question regarding Article 21 of the Constitution
was also dealt with by this Court. The relevant para 23 of the C
judgment reads as under:
"23. The next main contention advanced by the
counsel for the appellants is about the nature of the trial. It
was contended that under Article 21 of the Constitution a
citizen has a right to an open public trial and as by D
ct:anging the venue the trial was shifted to Tihar Jail, it
could not be said to be an open public trial. Learned
counsel also referred to certain orders passed by the trial
court wherein it has been provided that representatives of
the Press may be permitted to attend and while passing E
those orders the learned trial Judge had indicated that for
security and other regulations it will be open to Jail
authorities to regulate the entry or issue passes necessary
for coming to the Court and on the basis of these
circumstances and the situation as it was in Tihar Jail it F
was contende<ll that the trial was not public and open and
therefore on this ground the trial vitiates. It was also
contended that provisions contained in Section 327
Cr.P.C. clearly provides that a trial in a criminal case has
to be public and open except if any part of the proceedings G
for some special reasons to be recorded by the trial court,
could be in camera. It was contended that the High Court
while exercising jurisdiction. under Section 9(6) notified the
place of trial as Tihar Jail, it indirectly did what the trial
court could have done in respect of particular, part of the
H
966 SUPREME COURT REPORTS [2010] 3 S.C.R.
A proceedings and the, High. Court has no jurisdiction uhder
Section 327 to order trial to be held in camera or private
and in fact as the trial was shifted to Tihar Jail it ceased
to be open and public trial. Learned counsel on this part
of the contention referred to decisions from American
B Supreme Court and also from House of Lords. In fact, the
argument advanced has been on the basis of the
American decisions where the concept of open trial has
developed in due course of time whereas so far as India
is concerned here even before the Constitution our
c criminal practice always contemplated a trial which is open
to public."
66. In this case, the Court dealt with Section 327 Cr.P.C.
which reads as under:
D "327. Court to be open-(1) The place in which any.
Criminal Court is held for the purpose of inquiring into or
trying any offence shall be deemed to be an open Court,
to which the public generally may have access, so far as
the same can conveniently contain them:
E
Provided that the Presiding Judge or Magistrate,
may, if he thinks fit, of order at any stage of any inquiry into,
or trial of, any particular case, that the public generally, or
any particular person, shall not have access to, or be or
remain in, the room or building used by the Court.
F
(2) Notwithstanding anything contained in Sub-
section (1 ), the inquiry into and trial of rape or an offence
under Section 376, Section 376-A, Section 376-8, Section
376-C or Section 376-D of the Indian Penal Code shall be
G conducted in camera:
Provided that the presiding judge may, if he thinks
fit, or on an application made by either of the parties, allow
any particular per: son to have access to, or be or remains
in, the room or building used by the court.
H
'
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 967
[DALVEER BHANDARI, J.]
(3) Where any proceedings are held under Sub- A
section (2) it shall not be lawful for any person to print or
publish any matter in relation to any such proceedings,
except with the previous permission of the court."
67. On analysis of Section 327 Cr.P.C., this Court
8
observed as under:
" ....... So far as this country is concerned the law be
very clear that as soon as a trial of a criminal case is held
whatever may be the place it will be an open trial. The only
thing that it is necessary for the appellant is to point out C
that in fact that it was not an open trial. It is not disputed
that there is no material at all to suggest that any one who
wanted to attend the trial was prevented from so doing or
one who wanted to go into the Court room was not allowed
to do so and in absence of any such material on actual D
facts all these legal arguments loses its significance. The
authorities on which reliance were placed are being dealt
with elsewhere in the judgment."
68. In the concurring judgment, Ray, J. has specifically dealt E
with this aspect of the case. On interpretation of Section 327
Cr.P.C., the Court observed as under:
"....... It is pertinent of mention that Section 327 of the
Cr.P.C. provides that any place in which any criminal court
is held for the purpose of inquiring into or trying any offence F
shall be deemed to be an open court, to which the public
generally may have access, so far as the same can
conveniently contain them. The place of trial in Tihar Jail
according to this provision is to be deemed to be an open
court as the access of the public to it was not prohibited. G
Moreover, it has been submitted on behalf of the
prosecution that there is nothing to show that the friends
and relations of the accused or any other member of the
public was prevented from having access to the place
H
968 SUPREME COURT REPORTS [2010) 3 S.C.R.
A where trial was held. On the other hand, it has been stated
that permission was granted to the friends and relations
of the accused as well as to outsiders who wanted to have
access to the court to see the proceedings subject; of
course, to jail regulations. Section 2(p) Criminal Procedure
B Code defines places as including a house, building, tent,
vehicle and vessel. So court can be held in a tent, vehicle,
a vessel other than in court. Furthermore, the proviso to
Section 327 Criminal Procedure Code provides that the
presiding Judge or Magistrate may also at any stage of
c trial by order restrictaccess of the public in general, or any
particular person in particular in the room or building where
the trial is held. In some cases trial of criminal case is held
in court and some restrictions are imposed for security
reason regarding entry into the court. Such restrictions do
not detract from trial in open court. Section 327 proviso
D
empowers the Presiding Judge or Magistrate to make
order denying entry of public in court. No such order had
been made in this case denying access of members of
public to court."
E 69. Ray, J. has also dealt with Indian, English and
American cases. He placed reliance on a judgment of this Court
in Naresh Shridhar Mirajkar (supra). The relevant passage of
the said judgment which was relied on by Ray, J. is set out as
under:
F
"While emphasizing the importance of public trial, we
cannot overlook the fact that the primary function of the
judiciary is to do justice between the parties who bring their
causes before it. If a judge trying a cause is satisfied that
the very purpose of finding truth in the case would be
G
retarded, or even defeated if witnesses are required to
give evidence subject to pubic gaze, is it or is it not open
to him in exercise of his inherent' power to hold the trial in
camera either partly or fully? If the primary function of the
trial is to do justice in causes brought before it, then on
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 969
[DALVEER BHANDARI, J.]
principle, it is difficult to accede to the proposition that there A
can be no exception to the rule that all causes must be
tried in open court. If the principle that all trials before courts
must be held in public was treated as inflexible and
universal and it is held that it admits of no exceptions
whatever, cases may arise whereby following the principle, B
justice itself may be defeated. That is why we feel no
hesitation in holding that the high Court has inherent
jurisdiction to hold a trial in camera if the ends of justice
clearly and necessarily require the adoption of such a
course ........ In this connection it is essential to remember c
that public trial of causes is a means, though important and
valuable, to ensure fair administration of justice, it is a
means, not an end. It is the fair administration of justice
which is the end of judicial process, and so, if ever a real
conflict, arises between fair administration of justice itself D
on the one hand, and public trial on the other, inev.itably,
public trial may have to be regulated or controlled in the
interest of administration of justice."
70. In this case, Shetty, J. in his concurring judgment also
elaborately dealt with this aspect of the matter and observed E
as under:
"The right of an accused to have a public trial in our
country has been expressly provided in the code, and I will
have an occasion to consider that question a little later. The F
Sixth Amendment to the United States Constitution
provides "In all criminal prosecution, the accused shall
enjoy the right to a speedy and public trial by an impartial
jury ... " No such right has been guaranteed to the accused
under our Constitution."
G
71. The Court observed that "the trial in jail is not an
innovation. It has been there before we were born". The validity
of the trial with reference to Section 352 of the Code of 1898
since re-enacted as Section 327(1) has been the subject matter
of several decisions of different High Courts. H
970 SUPREME COURT REPORTS [2010] 3 S.C.R.
A 72. The Court also dealt with the judgment Of this Court in
A.K. Roy & Others v. Union of India & Others (1982) 1 SCC
271 and observed (at page 342, para 106) as under:
" ..... The right to a public trial is not one of the
guaranteed rights under our Constitution as it is under the
B
6th Amendment of the American Constitution which
secures to persons charged with crimes a public, as well
as a speedy, .trial. Even under the American Constitution,
the right guaranteed by the 6th Amendment is held to be
personal to the accused; which the public in general cannot
c share. Considering the nature of the inquiry which the
Advisory Board has to undertake, we do not think that the
interest of justice will be served better by giving access to
the public to the proceedings of the Advisory Board."
D 73. Reliance was placed on the case of Sahai Singh v.
Emperor AIR 1917 Lah. 311. In this case, the conviction of the
accused was challenged on the ground that the whole trial is
vitiated because it was held in the jail. In this case, the Court
held that, "there is nothing to show that admittance was refused
E to anyone who desired it, or that the prisoners were unable to
communicate with their friends or counsel. No doubt, it is difficult
to get counsel to appear in the jail and for that reason, if for no
other, such trials are usually undesirable, but in this case the
Executive Authorities were of the opinion that it would be unsafe
F to hold the trial elsewhere."
74. In Kai/ash Nath Agarwal & Another v. Emperor AIR
(34) 1947 Allahabad 436, the Allahabad High Court has taken
the view that there is no inherent illegality in jail trials if the
Magistrate follows the rules of Section 352 which is equivalent
G to Section 327(1) of the new Code.
75. In re M. R. Venkataraman AIR (37) 1950 Madras 441,
the Court came to the conclusion that the trial is not vitiated
because it was held in jail.
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 971
[DALVEER BHANDARI, J.]
76. In re T. R. Ganeshan AIR (37) 1950 Madras 696, the A
High Court upheld the validity of the jail trial.
77. In Prasanta Kumar Mukerjee v. The State AIR (39)
1952 Calcutta 91 and Narwarsingh & Another v. State AIR
1952 Madhya Bharat 193, the High Court recognized the right
of the Magistrate to hold court in jail for reasons of security for B
accused, for witnesses or for the Magistrate himself or for other
valid reasons.
78. Mr. Pravin Parekh, the learned senior counsel
appearing for the High Court submitted that the Law Secretary, C
Government of Bihar vide letter No. 1-C(R) dated 7.5.2006
wrote to the Registrar General of the Patna High Court that the
Patna High Court may kindly be moved for trial of cases
pending against Md. Shahabuddin in Siwan Jail by constituting
two special courts, one each of Additional Sessions Judge and D
.
another
~.
of Judicial Magistrate 1st Class.
79. Mr. Parekh pointed out that the Superintendent of
Police, Siwan vide his letter No. 1493 dated 8.5.2006 wrote
to the District Magistrate that more than forty cases were
pending against Mohd. Shahabuddin and directions had been E
received from the Patna High Court to dispose of those cases
expeditiously. It is stated that there was a serious danger to
public peace during the presence of the appellant in the court
premises. His supporters and other co-criminals could attack
the witnesses. Even the ppssibility of threat and attack on the F
public prosecutor/district prosecuting officer could not be ruled
out. Besides this, since he was wanted in many cases,
therefore, other criminal groups could also attack him. Since
he was a sitting Member of Parliament (hereinafter referred to
as 'M.P.') and looking to the number of his supporters, it would G
impair the working of other courts in the Civil Court, Siwan. His
supporters could create disturbance during hearing or realizing
that his defence became weak and there was a possibility that
his supporters might disturb public peace in the court premises
and nearby areas and could commit murder and/or create other H
972 SUPREME COURT REPORTS [2010] 3 S.C.R.
A serious law and order problems. The pecple of Siwan got
frightened on the mere mention of name of Mohd. Shahabuddin.
In view of orders passed by the High Court, competent Court
may be moved for constituting Special Court in Siwan Jail.
80. Mr. Parekh submitted that the District Magistrate
8 concurred with the report of the Superintendent of Police, Siwan
and wrote to the Home Secretary, Bihar. While referring to the
Superintendent of Police's letter dated 8.5.2006, the District
Magistrate requested that necessary action may kindly be taken
for construction of Court rooms in District Jail for quick trial of
C cases relating to the appellant.
81. Mr. Parekh also brought to our attention that the Law
Secretary, Government of Bihar vide letter No. 361/C/2006
dated 9th May, 2006 wrote to the Registrar General of Patna
D High Court by enclosing a photocopy of letters of Superintendent
of Police, Siwan and District Magistrate, Siwan both dated
8.5.2006. He stated that Md. Shahabuddin is a high profile M.P.
from Siwan having criminal antecedents, since reportedly
facing prosecution in more than forty cases. His physical
E production in the court during trial may be a source of menace
to the public peace and tranquility, besides posing a great threat
to the internal security extending other prosecution witnesses
and prosecutors too. That apart, it may have adverse impact
on inside Court working condition making the situation
F surcharged during trial. It was likely to impair inside court room
working culture which in the ultimate analysis may have fallout
on the administration of criminal justice. To promote efficient
conducting of trial as also to strengthen its efficacy, therefore,
the trial of Md. Shahabuddin inside District Jail, Siwan by
proposed especially constituted courts seems to be an
G imperative need of the time. Accordingly, he requested that the
Patna High Court may be moved to con'stitute Special Courts
for the trial of the appellant Md. Shahabuddin inside the District
Jail, Siwan.
H 82. Accordingly, a note requesting for placing the aforesaid
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 973
[DALVEER BHANDARI, J.]
matter for consideration of the Standing Committee was put up A
by the Registrar General on 9.5.2006 to the Chief Justice of
Patna High Court by enclosing both the letters of Superintendent
of Police, Siwan and the District Magistrate dated 8.5.06 along
with the Law Secretary's letter dated 9.5.06 by enclosing three
precedents in respect of designation of the Special Courts for B
the trial of:
(a) Accused person relating to the cases of
Lakshmanpur (Bathe), Jerhanabad carnage;
(b) Cases relating to Narainpur (Jehanabad) C
massacre;
(c) Sessions trial No. 115 of 2006 (State vs.
Anandmohan & Ors.) relating to murder of G.
Krishnaiyyah, the then District Magistrate, D
Gopalganj and for earmarking court of the
Additional District & Sessions Judge.
83. Mr. Parekh further submitted that the Chief Justice of
Patna High Court directed that the matter be put up before the
Standing Committee. A list of the Additional Sessions Judges E
for trial of sessions' cases and list of the Special Magistrates
was also placed for kind consideration of the Standing
Committee.
84. Accordingly, the matter was placed before the Standing F
Committee in its meeting held on 11.5.2006. The Agenda for
the said meeting was: "Letters received from the Law Secret~ry,
Government of Bihar regarding designation of the Special Court
of Session and Court of Judicial Magistrate, 1st Class for
expeditious trial of the cases pending against Mohd. G
Shahabuddin and for notifying Siwan Jail a place for shifting
of Sessions Court and Magisterial Court inside the jail for trial
of such cases". Accordingly, a decision was taken by the
Standing Committe,~; which is as under:
"Upon due deliberation and consideration of the letters 1-1
974 SUPREME COURT REPORTS [2010] 3 S.C.R.
A received from the Law Secretary, regarding designation
of Special Court of Session and Court of Judicial
Magistrate, 1st Class for expedltious trial of cases pending
against Md. Shahbuddin and for notifying the Siwan Jail
for sitting of Sessions and Magisterial Courts inside the
B Siwan Jail for trial of such cases. It is resolved to designate .
one court of Additional District and Sessions Judge as
Special Court for trying the cases triable by the Courts of
Sessions and one Court of Judicial Magistrate for trying
the cases triable by the Court of Maigistrate, 1st Class.
c The matter of posting of the Officers i.e. ADJ and Judicial
Magistrate, 1st Class, the matter be placed before the Sub
committee which has been entrusted the transfer and
posting under the Annual General Transfer. It is also
resolved that the Siwan Jail premises be notified as a
place of sitting of Sessions Court and Magisterial Court
D
under provisions of Section 9(6) of the Criminal Procedure
Code."
85. Mr. Parekh further pointed out that another note was
put up by the Joint Registrar (Estt) on 17.5.2006 to the Registrar
E General pointing out Section 9(6) af the Code related only to
Court of Session and not to Judicial Magistrate. A request was
made to place the matter before the Hon'ble Court for
necessary orders.
F 86. The Standing Committee in its meeting dated
18.5.2006 decided as under:
"It is resolved that the minutes of the proceeding of
the last meeting of the Standing Committee held on 11th
May, 2006, be approved, with the only modification that in
G the last line of agenda item No. (4) after section 9 sub-
section (6) "and section 11 Sub-section (1) of the Code
of Criminal Procedure, 1973, respectively" be added."
87. Accordingly, Notification No. 184A dated 20.5.2006
H was issued by the Patna High Court by which the premises of
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 975
[DALVEER BHANDARI, J.]
the District Jail, Siwan will be place of sitting of the Court of A
Sessions.
88. Mr. Parekh also pointed out that vide letter No. 5137/
Admn (Appointment) dated 20.5.2006, Mr. Gyaneshwar
Srivastava, Additional District and Sessions Judge, Darbhanga 8
was designated as the Presiding Officer (Special Judge) of the
Special Court of the Additional District and Sessions Judge
being constituted inside the District Jail, Siwan for the
expeditious trial of Sessions Cases pending against Mohd.
' Shahabuddin.
c
89. Similarly, vide letter No. 5139, the Registrar General
informed the Law Secretary that the Patna High Court had been
pleased to accept the proposal of the State Government for
establishment of a Special Court of Judicial Magistrate, 1st
Class inside the District Jail, Siwan for the expeditious trial of D
cases pending against Mohd. Shahabuddin. The Registrar
General vide letter No. 5141 dated 20.5.2006 informed the
Secretary Department (Personnel) that Patna High Court has
been pleased to recommend the name of Shri Vishwa Vibhuti
Gupta, Judicial Magistrate, 1st Class, Siwan for his designation E
as the Presiding Officer (Special Magistrate) of the Special
Court of Judi}::ial Magistrate, 1st Class being constituted inside
the District Jail, Siwan for expeditious trials of cases pending
against Md. Shahabuddin.
90. The Registrar General vide his letter No. 5145 dated F
20.5.2006 wrote to the Superintendent, Secretariat Press,
Bihar, Gulzarbagh, Patna with a request to publish the enclosed
notification in the next issue of Bihar Gazette. The issuing
section was instructed to issue it at once on the very same day
under a sealed cover as per the directions of the Registrar G
General.
91. Accordingly, notification No. 184A dated 20.5.06 was
published in Part-1 of the Bihar Gazette dated 16.8.2006 along
with other notifications of various dates. H
976 SUPREME COURT REPORTS [2010] 3 S.C.R.
A 92. Thereafter, the Law (Judicial) Department, Government
of Bihar, Patna published the two Notifications bearing Nos.
Part-1452/J and Part-1453/J both dated 7.6.2006
corresponding to S.Os. 80 and 82 respectively in the Bihw
Gazette (Extraordinary Edition) which were impugned by the
B appellant. The Personnel Department also issued the
Notification Nos. 5556 and 5557 dated 12.6.2006 regarding
appointment of the Presiding Officers for the said two Special
Courts.
93. The impugned Notifications provide that the State of
C Bihar in exercise of its power conferred by Section 11 of
Cr.P.C. and in consultation with Patna High Court had been
pleased to establish a Court of Judicial Magistrate of 1st Class,
inside the District Jail, Siwan, shall hold its sitting inside the
District Jail, Siwan for trial of cases pending against Md.
D Shahabuddin in the Court of Judicial Magistrate, 1st Class.
94. Similarly, another Notification dated 7.6.2006 was
issued by the Governor of Bihar, in exercise of the powers
conferred by sub-section (1) of Section 13 and sub-section (1)
E of Section 14 of the Bengal, Agra and Assam Civil Courts Act,
1887 (Act 12 of 1887) and sub-section (6) of Section 9 of the
Code and in the light of Notification No. 184A da~d 20th May,
2006 issued by the High Court of Judicature at Patna directing
that the Court of Additional District and Sessions Judge of
F Siwan Sessions Division shall now hold its sitting inside the
District Jail, Siwan to try Sessions cases pending against Md.
Shahabudin. Both these notifications came into force with effect
from 7.6.2006.
95. Mr. Parekh submitted that there is no infirmity in
G establishing two Special Courts inside the Siwan Jail for trying
the cases of Md. Shahabuddin, M.P. from Siwan constituency,
as the impugned notifications were issued in pursuance to the
direction of the Patna High Court vide its notification dated
20.5.2006.
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 977
[DALVEER BHANDARI, J.]
96. According to Mr. Parekh, the contentions raised by the A
appellant in the present appeal have been rejected by a three-
Judge Bench of this court in Kehar Singh's case. It has been
held that:
"T'1e High Court need not afford hearing to accused before B
fixing place of sitting of Sessions Court. Under Section 9(6)
Cr.P.C. the High Court has the jurisdiction to specify the
place or places where ordinarily a Court of Session may
sit within the division. There is no error if the Sessions trial
is held in Tihar Jail after such a notification has been C
issued by the High court. As soon as a Court holds trial in
a venue fixed for such trial, it is deemed to be an open
Court under Section 327, irrespective of the place of trial
- whether it is a private house or a jail and everyone has
a right to go and attend the trial. The High Court can fix a
place other than the Court where the sittings are ordinarily D
held if the High Court so notifies for the ends of justice. The
argument that jail can never be regarded as a proper place
for a public trial is too general. Jail is not a prohibited place
for trial of criminal cases. Nor the jail trial can be regarded
as an illegitimate trial. There can be trial in jail premises E
for reasons of security to the parties, witnesses and for
other valid reasons."
97. Kehar Singh's judgment (supra) laid down that the
public trial is a means, though important and valuable to ensure F
fair administration of justice, it is a means, not an end. It is the
fair administration of justice which is the end of judicial process,
and so, if ever a real conflict arises between fair administration
of justice itself on the one hand, and public trials on the other,
inevitably, public trials may have to be regulated or controlled G
in the interest of administration of justice. Moreover, it is laid
down that order of the High Court is an Administrative Order
and not Judicial Order.
98. Mr. Parekh has referred to a separate counter affidavit
filed in the High Court. He has also mentioned that the H
978 SUPREME COURT REPORTS [2010] 3 S.C.R.
A expeditious trial should not be read out of context. The cases ·
of the appellant cannot be decided in normal course in the court
premises because of the background of the appellant. The
appellant is keeping a private army and if trial is conducted in
court there is serious apprehension to the lives of the witnesses,
B public prosecutor, Presiding Officer and the accused. Therefore,
after taking into consideration all facts and circumstances, a
decision has been taken to hold the trials' in jail. He referred to
para 22 of the Kehar Singh's judgment (supra) delivered by
Oza, J. in which it is mentioned that the High Court by
c notification has notified that Tihar Jail along with Tis Hazari and
the New Delhi will be the places of sittings of the sessions court.
He also referred to the para 157 of the judgment delivered by
Shetty, J. who gave a concurring judgment in the Kehar Singh's
case (supra).
D 99. He has further submitted that the High Court is '
empowered under section 9(6) of the Code to specify a place
or places for hearing of individual case. He referred to para 171
in which Shetty, J. has observed that under Section 9(6), the
High Court exercises administrative power intended to further
E the administration of justice. The second part deals with the
power of the Court of Session. The judicial power of the court
intended to avoid hardship to the parties and witnesses in
particular. One is independent of and unconnected with the
other, the exercise of which is conditioned by mutual consent
F of the parties. The court further observed that the exercise of
that power has to be narrowly tailored to the convenience of all
concerned. It cannot be made use for any other purpose. The
limited judicial power of the Court of Session should not be put
across to curtail the vast administrative power of the High
G Court.
100. In response thereto, Mr. Jethmalani, the learned
senior counsel for the appellant pointed out in the rejoinder that
there is no law that a bad character person should be tried by
a Special Court. He submitted that Notification dated 20th May,
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 979
[DALVEER BHANDARI, J.]
2006 was not gazetted before the consequential notification A
dated 7th June, 2006 was issued. He has referred to the
definitions of "notification", "official Gazette" and "Gazette" in the
Criminal Procedure Code. According to the definition given in
the Code, the word "notification" means a notification published
in the Official Gazette. "Official Gazette" or "Gazette" shall mean B
the Gazette of India or the Official Gazette of a State.
101. He submitted that the copy of the notification was not
made available to the appellant and he was driven to file a writ
petition before this court and only because of the direction of
this court, a copy of the notification was made available to him. C
102. Public trial is an important part of the judicial system
and this court in Kehar Singh's case has ruled:
"In open dispensation of justice, the people may s~e1th~t: D
the State is not misusing the State ma9h.i1J~!!)\di!Se;theJ U
Police, the Prosecutors and other._p~:IJ>licds~a~ .. illh.eJ
people may see that the accused is fairly dealt with and
not unjustly condemned!"T~re>iS'yef.~t~~ij'#>~&V'.'The
courts like om@f! iftstlfiltfoosta1s@ct.re!~<fl§ ~opli:!JVll'"hey E
are"Elsofm1Ch9ftbmhll::itls\1lat~§lf@e~Y36t~r9rftte36ther 3
ns ittStfllttient§WEfnMftUOO>tls ~fjtJ-ie!8tiiteW9 ~et the
riou~cfwer'iOlfl tn\e'~Sel<oreiffigRf~tFfelf sWovg_nmi\9mft the
erU dSuflS~ime trt/uhs ~§~fl@c!.~1iM~fli'ls8b1f4IBttetriThe
evi~tfiifli~liis&L~ OffiyEiy-'H~i!S!i&e~tcmoisiblic
confidence. The[~Hl!q~f!Q~o@C\!Jmi31:1Hxf~&Yfel:! by ~
iol t'YfrfiP:tii~fit~Paug(f a'T1g{~rH9~rtr1i~~i:l?e~M~~grff~~lr ".ao t
ertt mw. ~ fimTl:{ll@stidjl\ff\~e~§JEtSI, IJ§f&e~w:imi€1e!f
~fl§i\ffet~rM ~tn~1'lrE!CW~fteti@Rt i\hcfl~@P, ~IS!fllWeni:m
a@ffiiffi~t~~~fill§@ fA~~S1<eimfe11WPii~!ii!llitf; ~
ty~ot' at~Chmt>~IS~t'~sl!fe%re'f8!ifet~rf~lli£Wai§lffe1tjJ if:tf
Kehar Singh's casEPfWal tl\!Pt>~@t tlPih~~~ ffifilt01e~
the tr~L~ not atm·ud1·cialtorder but an.admiaistrative...iorder.,,The
-
·e1srt' lt';r~ eo1 \!J,..siu sn-to ae1q1on11q em to aJoetuo en 1
cgp no1Tsgirdbu~ f'r't1iw auomxnonxa as boota1ebnu won
tsrtt ,snob ai eoitau[ tsrtt e1uane of ai gnilsert iisl s ebivo1q ~
980 SUPREME COURT REPORTS [2010) 3 S.C.R.
A "The order of the High Court notifying the trial of a particular
case in a place other than the Court is not a judicial order
but an administrative order."
104. Since this is an administrative function, therefore, the
test for this court should be whether the decision of the High
8
Court stands up to the test of judicial review of administrative
decisions. The first question, therefore, is whether the appellant
had a statutory right to a hearing. If this is answered in the
positive, then there is no need to go to further issues, as this
would mean that the State has violated a statutory right to
C hearing. It is clear from the wording of Section 9 of the Code
that there is no need for the High Court to give a hearing while
deciding the venue of the trial. It is only if the Sessions Court
is moving the place of trial that the parties have a right to a
hearing. It must be added that one of the exceptions to the rule
D of audi alteram partem is the denial of hearing by implication.
D. D. Basu in his celebrated book mentions:
"(a) Where the statute classifies different situations and
while, in some cases, it makes it obligatory to give a
E hearing, to the party to be affected by the proposed order,
in some other specified circumstances, such as an
emergency or the avoidance of public injury, no such
hearing is required because of the nature of the
exceptional situation." [Basu, Durga, Das, Administrataive
F Law, Sixth Edition, 2004 at pg. 288]
105. It is therefore, clear that there is no statutory right for
the appellant to be heard. However, common law and the
principles laid down in the Constitution lay down that even in
administrative action there must be minimum standards that are
G to be maintained. In State Bank of Patiala & Others v. S.K.
Sharma (1996) 3 SCC 364 this court ruled:
"The objects of the principles of natural justice - which are
now understood as synonymous with the obligation to
H provide a fair hearing is to ensure that justice is done, that
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 981
(DALVEER BHANDARI, J.]
there is no failure of justice and that every person whose A
rights are going to be affected by the proposed action
gets a fair hearing."
106. In Wiseman & Another v. Borneman & Others
(1971) A.C. 297 Lord Reid held: B
"For a long time the courts have, without objection from
Parliament, supplemented procedure laid down in
legislation where they have found that to be necessary for
this purpose. But before this unusual kind of power is
exercised it must be clear that the statutory procedure is C
insufficient to achieve justice and that to require additional
steps would not frustrate the apparent purpose of the
legislation."
107. Therefore, this court must look into the issue whether D
the right to a fair hearing was denied to the appellant or not
even if there is no statutory provision for it.
108. The principles of natural justice are essential to the
framework of our laws and a protection against arbitrary
actions. There is every duty of the courts to judicially review E
administrative actions. However, this is usually not to be applied
blindly. In Regina v. Gaming Board for Great Britain (1970) 2
Q.B. 417, the court emphasized:
I - I l •
-
"it is not possible to lay down rigid rules as to when the F
principles of natural justice are to apply: nor as to their
scope and extent. Everything depends on the subject-
matter." '
109. However, there are situations where the action of the
State is prima facie void and therefore has to be set aside. If G
the denial of a public trial was a prima facie case of vitiation
of natural justice, the court would be justified in exercising
judicial review. This Court in Naresh Shridhar Mirajkar's case
(supra) held that: ""
H
982 SUPREME COURT REPORTS [2010] 3 S.C.R.
A "If the principle that all trials before courts must be held in
public was treated as inflexible and universal and it is held
that it admits of no exception whate,ver, cases may arise
where by following the principle, justice itself may be
defeated."
B
110. In the present case, it must be noted that a large
number of supporters of the appellant may create unrest in front
of the court room and much larger security would be required
to protect the witnesses, the officers of the Court and the
appellant. Therefore, it is clear frc>m the letter of the
C Superintendent of Police of Siwan that it is not possible to hold
the trials of the appellant in the open court. Holding of the trials
of the appellant in open court may affect the trials of other civil
and criminal cases that are going on in ttae same court building.
Therefore, there is no violation of the principles of natural justice
D in shifting the trials of the cases of the abpellant from a regular
court to a special court.
111. When there is no prima facie violation of the principles
of natural justice then one must test whether there is need for
E a judicial review of the orders of shifting the trials. The Privy
Council in Alfred Thangarajah Durayappah of Chundikuly v.
WJ. Fernando & Others (1967) 2 AC 337 laid down that it was
neither possible nor desirable to classify exhaustively the cases
in which a hearing is required but three factors must be borne
F in mind-
(1) The nature of the property or office held or status
enjoyed by the complainant.
(2) The circumstances in which the other deciding party
G is entitled to intervene.
(3) When the latter's right to intervene is proved, the
sanctions he can impose on the complainant.
112. The subject matter in the present case is the open
H trials for the appellant. There is a claim that it is being vitiated
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 983
[DALVEER BHANDARI, J.]
by holding the trial in the jail. Here again there is doubt as to A
whether the first requirement has been vitiated by the decision
of the High Court. The appellant has merely stated that the trial
of his case has been transferred from the Siwan Court to the
Siwan Jail. This in itself does not prove that the trial has been
closed to the public. In Kehar Singh's case, this court observed B
that for reasons of security, the public access to trial can be
regulated. The relevant observations are reproduced as under:-
"10. For security reasons, the public access to trial was
regulated. Those who desired to witness the trial were C
required to intimate the court in advance. The trial Judge
used to accord permission to such persons subject to
usual security checks"
113. This was considered a valid trial in open court.
D
114. Even in the United States in Samuel H. Sheppard
v. E.L. Maxwell 384 U.S. 333 (1966), the Supreme Court ruled
that the right to a public trial is not absolute. Sometimes excess
publicity can be harmful to the case and therefore public access
may be restricted. In Press-Enterprise Co. v. Superior Court E
478 U.S. 1 (1986), the court held that trials can be closed on
account of there being:
"an overriding interest based on findings that closure is
essential to preserve higher values and is narrowly tailored
to serve that interest." F
115. While the Oregon Court of Appeals overruled the trial
held in prison.in State of Oregon v. James Donald Jackson
178 Or App 233, 36 P3d 500 (2001) on the specific ground
that the public did not have access to watch the trial; there is G
no ruling that all trials inside jails are void. In the case of
Stephen Gary Howard v Commonwealth of Virgin/a 6 Va.
App. 132 (1988) the appellant claimed that the trial inside
prison was inherently prejudicial to his case. The Court of
Appeals of Virginia held that there is no presumption of H
984 SUPREME COURT REPORTS (2010] 3 S.C.R.
A prejudice if a trial is held in prison. The court noted:
"We find that the trial location did not erode Howard's right
to a presumption of innocence."
116. In Adolph Dammerau v. Commonwealth of Virginia
B 3 Va. App. 285 (1986), the Court of Appeal ruled:
"Rather, the surroundings and cire(umstances of each
situation must be examined to determine if the public was
inhibited from attending the trial so that "freedom of
c access" was effectively denied."
117. This clearly shows that the approach of the court that
there is no presumption that a trial in prison is not an open trial.
118. In The People v. Robert England the Court 83 Cal.
D App. 4th 772 (2000) of Appeals of California held that
reasonable restrictions, like security checks should be allowed.
The court found:
"In this case, the court did not close the trial to the public.
E Defendant argues only that it was more difficult for the
public to attend because some people would be
dissuaded from attending a proceeding held on prison
grounds and some would resent having to identify
themselves to prison officials to gain access to the
grounds. Neither concern impacts defendant's right to a
F
public trial.
As noted previously, because the courtroom was located
outside the actual prison wires, there was little possibility
that the public might come into contact with inmates or
G otherwise be exposed to prison activities. That some
people might not want to go to a courtroom located on
prison grounds is irrelevant to determining whether a trial
was public. Other individuals might not want to go
downtown to an urban courtroom, while others might not
H want to drive long distances in rural areas to attend a
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 985
[DALVEER BHANDARI, J.]
courtroom located in another town. These individual A
predilections do not make what is otherwise a public trial
any Jess public.
Nor does the fact that individuals have to identify
themselves before entering prison grounds unlawfully B
curtail defendant's right to a public trial. Far more stringent
security procedures have been permitted in other cases."
119. Therefore, to hold that the appellant's right to a public
trial has been denied the appellant has to prove more than mere
shifting of the location of the trial. C
120. Lord Wilberforce in Malloch v. Aberdeen
Corporation (1971) 1 W.L.R. 1578 laid down a test for courts
before it interfered in the decisions of administrative authorities
on the ground of violation of audi alteram parlem. He stated: D
"The appellant has first to show that his position was such
that he had, in principle, a right to make representations
before a decision against him was taken. But to show this
is not necessarily enough, unless he can also show that if
admitted to state his case he had a case of substance to E
make. A breach of procedure, whether called a failure of
natural justice, or an essential administrative fault,
cannot give him a remedy in the courls, unless behind it
there is something of substance which has been Jost by
the failure. The courl does not act in vain" F
121. In the present case, it has been shown by the
respondents that no one had been denied from attending or
watching the trial. The appellant is being represented by 38
lawyers. Apart from his lawyers, the press and those who want G
to attend the trial or case had free access to remain present
during the court proceedings.
122. In K.L. Tripathi v. State Bank of India & Others/
(1984) 1 SCC 43 this Court hel.d:
H
986 SUPREME COURT REPORTS [2010] 3 S.C.R.
A "When on the question of facts there was no dispute, no
real prejudice has been caused to a party aggrieved by
an order, by absence of any formal opportunity of cross-
exam ination per se does not invalidate or vitiate the
decision arrived at fairly .... "
E
B
In the same case this Court stated:
"it is true that all actions against a pa~y which involve penal
or adverse consequences must be in accordance with the
principles of natural justice ... "
123. In George v Sec(etary of the State for the
Environment (1979) 77 L.G.R. 689 (1979), the court held that
there must be some real prejudice to the complainant:
0 "there is no such thing as a merely technical infringement
D of natural justice."
The court noted:
"The question is whether, as a result of any failure in
3 I procedure or the like, there was a b~each of natural justice.
E
'
~i
On this approach, the position under the first limb is almost
indistinguishable from that under the second limb. One
'{
should not find a breach of natural justice unless there has
1 been substantial prejudice to the applicant as a result of
F the mistake or error that has been made."
9!
10 124. In R. Balakrishna Pillai v. State of Kera/a (2000) 7
%pC 129, this Court observed regarding adherence to the
lfrfjnciples of Natural Justice. Relevant para is reproduced as
8
G ym!er:
"It is true that one of the principles of the administration of
218 justice is that justice should not only be done but it should
be seen to have been done. However, a mere allegation
~ that there is apprehension that justice will not be done in
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 987
[DALVEER BHANDARI, J.]
a given case is not sufficient." A
125. In Jankinath Sarangi v. State of Orissa (1969) 3
sec 392, this court pointed out that there is no carte blanche
rule of setting aside orders. Hidayatullah CJ, ruled:
"There is no doubt that if the principles of natural Justice B
are violated and there is a gross case, this Court would
interfere by striking down the order of dismissal; but there
are cases and cases. We have to look to what actual
prejudice has been caused to a person by the supposed
denial to him of a particular right." C
126. In Sahai Singh (supra), the court noted that if the
Executive Authorities were of the opinion that it would be unsafe
to hold the trial elsewhere it could be held in jail.
D
127. In the present case, the letters exchanged between
the police authorities and the request made to High Court
clearly show that there was serious danger in producing t,he
appellant in open court. The police authorities had shown that
the large crowds were making a fair trial impossible and
creating delays in deciding the cases. The relevant part of the E
letter dated 8.5.2006 written by the Superintendent of Police,
Siwan reads:
"With reference to the above, I have to respectfully inform
you that more than forty cases are pending against Hon'ble F
Member of Parliament Mohd. Shahabuddin. Directions
have been received from Hon'ble Patna High Court to
dispose of cases as soon as possible. There is serious
danger to public peace during the presence of Hon'ble
Member of Parliament Mohd. Shahabuddin, in the court G
premises. His supporters and other co-criminals can attack
the witnesses. Even the possibility of threat and attack on
the public prosecutor/district prosecuting officer cannot be
ruled out. Besides this, since he is wanted in many cases,
therefore, other criminal groups can also attack him. Since H
988 SUPREME COURT REPORTS [2010] 3 S.C.R.
A he is a sitting M.P. and looking to the number of his
supporters, it will impair the working of other courts in Civil
Court Siwan. His supporters can create disturbance during
hearing after seeing that his defence gets weak and there
is possibility that his supporters may disturb public peace
B in the court premises and nearby areas and can commit
murder and other serious law and order problems .......... "
128. In Ajit Kumar Nag v. General Manager (P.J.), Indian
Oil Corporation Ltd., Haldia & Others (20Q5) 7 SCC 764, there
was clear record that the employee had assaulted a doctor and
C it was not possible to run a hospital safely and as an emergency
the employee was dismissed. The court held that the dismissal ..
was valid in view of maintaining discipline of the hospital.
129. I have heard the learned counsel for the parties at
D length and carefully examined the provisions of law and the
relevant Indian, English and American judgments. The
judgments and other literature available on record favour public
trial or open trial as a rule.
E 130. Cooley, J. in his well known book Cooley's
Constitutional Law, Vol I, 8th edn., at page 647 observed as
under:
"It is also requisite that the trial be public. By this is
not meant that every person who sees fit shall in all cases
F be permitted to attend criminal trials; because there are
may cases where, from the character of the charge and
the nature of the evidence by which it is to be supported,
the motives to attend the trial on the part of portions of the
community would be of the worst character, and where a
G regard for public morals and public decency would require
that at least the young be excluded from hearing and
witnessing the evidences of human depravity which the trial
must necessarily bring to light. The requirement of a public
trial is for the benefit of the accused; that the public may
H see he is fairly dealt with and not unjustly condemned, and
MD. SHAHABUDDIN v. STATE OF BIHAR ~ ORS. 989
[DALVEER BHANDARI, J.]
that the presence of interested spectators may keep his A
triers keenly alive to a sense of their responsibility into the ·
importance of their functions; and the requirement is fairly
obseNed if, without partiality of favouritism, a reasonable
proportion of the public is suffered to attend,
notwithstanding that those persons whose presence could B
be of no seNice to the accused, and who would only be
drawn thither by a prurient curiosity, are excluded
altogether."
131. Every criminal act is an offence against the society. C
The crime is a wrong done more to the society than to an
individual. It involves a serious invasion of rights and liberties
of some other person or persons. The people are, therefore,
entitled to know whether the justice delivery system is adequate
or inadequate. Whether it responds appropriately to the
situation or it presents a pathetic picture. This is one aspect. D
The other aspect is still more fundamental. When the State
representing the society seeks to prosecute a person, the State
must do it openly. As Lord Shaw said with most outspoken
words [Scott & Another v. Scott: 1913 A.C. 417]:
E
"It is needless to quote authority on this topic from
legal, philosophical, or historical writers. It moves Bentham
over and over again. "In the darkness of secrecy, sinister
interest and evil in every shape have full swing. Only in
proportion as publicity has place can any of the checks F
. applicable to judicial injustice operate. Where there is no
publicity there is no justice." "Publicity is the very soul of
justice. It is the keenest spur to exertion and the surest of
all guards against improbity. It keeps the judge himself
while trying under trial." "The security of securities is G
publicity." But amongst historians the grave and enlightened
verdict of Hal-lam, in which he ranks the publicity of judicial
proceedings even higher than the rights of Parliament as
a guarantee of public security, is not likely to be forgotten:
"Civil liberty in this kingdom has two direct guarantees; the H
990 SUPREME COURT REPORTS [2010) 3 S.C.R.
A open administration of justice according to known laws truly
interpreted, and fair constructions of evidence; and the
right of Parliament, without let or interruption, to inquire into,
and obtain redress of, public grievances. Of these, the first
is by far the most indispensable; nor can the subjects of
B any State be reckoned to enjoy a real freedom, where this
condition is not found both in its judicial institutions and in
their constant exercise .... "
132. In dispensation of justice, the people should be
C satisfied that the State is not misusing the State machinery like
the Police, the Prosecutors and other Public Servants. The
people may see that the accused is fairly dealt with and not
unjustly condemned. There is yet another aspect. The courts like
other institutions also belong to people. They are as much
human institutions as any other. The other instruments and
D institutions of the State may survive by the power of the purse
or might of the sword. But not the Courts. The Courts have no
such means or power. The Courts could survive only by the
strength of public. confidence. The public confidence can be
fostered by exposing Courts more and more to public gaze.
E
133. Beth Hornbuckle Fleming in his article "First
Amendment Right of Access to Pretrial Proceeding in
Criminal Cases" (Emory Law Journal, V.32 (1983) P.619)
1
neatly recounts the benefits identified by' the Supreme Court of
F the United States in some of the leading decisions. He
categorizes the benefits as the "fairness" and "testimonial
improvement" effects on the trial itself, and the "educative" and
"sunshine" effects beyond the trial. He then proceeds to state;
"Public access to a criminal trial helps to ensure the
G fairness of the proceeding. The presence of public and
press encourages all participants to perform their duties
conscientiously and discourages misconduct and abuse
of power by judges, prosecutors and other participants.
Decisions based on partiality and bias are discouraged,
H thus protecting the integrity of the trial process. Public
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 991
[DALVEER BHANDARI, J.]
access helps to ensure that procedural rights are A
respected and that justice is applied equally. '
Closely related to the fairness function is the role of
public access in assuring accurate fact- finding through the
improvement of witness testimony. This occurs in three 8
ways. First, witnesses are discouraged from committing
perjury by the presence of members of the public who may
be aware of the truth. Second, witnesses like other
participants, may be encouraged to perform more
conscientiously by the presence of the public, thus C
improving the overall quality of testimony. Third, unknown
witnesses may be inducted to come forward and testify if
they learn of the proceedings through publicity.
Public access to trials also plays a significant role
in educating the public about the criminal justice process. D
Public awareness of the funct(oning of judicial proceedings
is essential to informed citizen debate and decision-
making about issues with significant effects beyond the
outcome of the particular proceeding. Public debate about
controversial topics, such as, exclusionary evidentiary rules, E
is enhanced by public observation of the effect of such
rules on actual trials. Attendance at criminal trials is a key
means by which the public can learn about the activities
of police, prosecutors, attorneys and other public servants,
and thus make educated decisions about how to remedy F
abuses within the criminal justice system.
Finally, public access to trials serves an important
"sunshine" function. Closed proceedings, especially when
they are the only judicial proceedings in a particular case
or when they determine the outcome of subsequent G
proceedings, may foster distrust of the judicial system.
Open proceedings, enhance the appearance of justice and
thus help to maintain public confidence in the judicial
system." ...
. tinivlovni ~
992 SUPREME COURT REPORTS [2010) 3 S.C.R.
A 134. In Gannett Co. Inc. v. Danial A. DePasquale (1979)
443 U.S. 368, the defendants were charged with murder and
requested closure of the hearing of their motion to suppress
allegedly involuntary confessions and ph}lsical evidence. The
prosecution and the trial Judge agreed and said that closure
B was necessary. The public and the press were denied access
to avoid adverse publicity. The closure was also to ensure that
the defendants' right to a fair trial was not jeopardized. The
Supreme Court addressed to the question whether the public
has an independent constitutional right of access to a pretrial
c judicial proceedings, even though tl:le defendant, the
prosecution, and the trial Judge had agreed that closure was
necessary. Explaining that th6 right to a public trial is personal
to the defendant, the Court held that t~e public and press do
not have an independent right of access to pretrial proceedings
under the Sixth Amendment.
0
135. Although the Court in Gannett ~eld that no right of ·
public access emanated from the sixth Amendment it did not
decide whether a constitutional right of public access is
guaranteed by the first amendment. This issue was discussed
E in great detail in Richmond Newspaper (supra). This case
involved the closure of the court-room during the fourth attempt
to try the accused for murder. The United States Supreme Court
considered whether the public and press rave a constitutional
right of access to criminal trials under the first amendment. The
F Court held that the first and fourteenth amendments guarantee
the public and press the right to attend ctiminal trials~' But the
Richmond Newspapers case (supra) still left the question as
to whether the press and p1.,1blic could be excluded· from trial
when it may be in the best iriterest of,f~irness. to make su.ch an
G exclusion. That question was .c~nsidered in the Globe
Newsp<Jper Co. v. Superior Court for the County of Norfolk
(-1982)4_5? U$-596 :73.LEd. 2d 248. \here the trial Judge
excluded the presl) and public from the court room pursuant to
a Massachusetts statute making closure mandatory in cases
H involving minor victims of sex crimes. The Court considered the
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 993
[DALVEER BHANDARI, J.]
constitutionality of the Massachusetts statute and held that the A ·
statute violated the first amendment because of its mandatory
nature. But it was held that it would be. open to the Court in any
given case to deny public access to criminal trials on the ground
of state's interest. Brennan, J., who delivered the opinion of the
Court said (at 258-59): B
"We agree with appellee that the first interest -
safeguarding the physical and psychological well-being of
a minor - is a compelling one. But as compelling as that
interest is, it does not justify a mandatory closure rule, for C
it is clear that the circumstances of the particular case may
affect the significance of the interest. A trial court can
determine on a case by case basis whether closure is
necessary to protect the welfare of a minor victim. Among
the factors to be weighed are the minor victim's age, ·
psychological maturity and understanding, the nature of the D
crime, the desires of the victims, and the interests of
parents and relatives ..... Such an approach ensures that
the constitutional right of the press and public to gain
access to criminal trials will not be restricted except where
necessary to protect the State's interest. E
136. It will be clear from these decisions that the
mandatory exclusion of the press and public to criminal trials
in all cases violates the First Amendment to the United States
Constitution. But if such exclusion is made by the trial Judge in F
the best interest of fairness to make that exclusion, it would not
violate that constitutional right.
137. It fs interesting to note that the view taken by the
American Supreme Court in the last case, runs parallel to the
principles laid down by this Court in Naresh Shridhar Mirajkar G
case (supra).
138. In the present case, it is necessary to maintain the
discipline of the court which is not only trying the case of the
appellant but a large number of other cases which were getting H
994 SUPREME COURT REPORTS [2010] 3 .S:C:R.
A delayed by the presence of a large-number of supporters.
139. The appellant is claiming that his right to a public trial
has been vitiated by the court being set up inside the jail. The
State must demonstrate that: (a) nobody is being denied entry
8 to the court room as long as they agree to the regular security
checks and (b) there is a clear and logical reason as to why
the case was transferred from the Siwan courthouse to the
Siwan Jail.
140. The second argument of the appellant is that the
C notification was not made available to him on time and
therefore the proceedings are void. In Managing Director, ECIL,
Hyderabad etc. etc. v. B. Karunakat etc. etc. (1993) 4 SCC
727 a Constitution Bench took the view that before an employee
. is punished in a disciplinary enquiry, a copy of the enquiry report
D should be furnished to him (i.e., wherever an enquiry officer is
appointed and he submits a report to the Disciplinary Authority).
It was held that not furnishing the report amounts to denial of
natural justice. At the same time, it was held that just because
it is shown that a copy of the enquiry officer's report is not
E furnished, the punishment ought not be set aside as a matter
of course. It was directed that in such cases, a copy of the report
should be furnished to the delinquent officer and his comments
obtained in that behalf and that the court should interfere with
the punishment order only if it is satisfied that the~~ h.as'fi,eeW
F a failure of justice. (see para 25 of State Ba.o'kJl:Jf.t ~a~Hif:l'
(su ra) ' .- 11 Jul:! .1101 utirano~
p · ,,,,;m ot aaemis't lo t2e1stni taed ertt
141. Therefore, to vitiate the1~§~~~mftrfdit~f
~heei~
0
1 1
t~ i~?:
11
~~z;~rtffaltf!~t~~giiflh~</1.e~
1
9 -"r1J 0 ~~ 2Srtu1 ~26t ~~~·
91
e1!~l~1
911 . I
1 6~~~c~~~
eU1~J~9iJlf189ffie'
~e~~~!? ~'nRtR~~"iWI n'ffl08 '~, ~ nwoouorsl ae1q1oni1q
PP . .(s1qu2) easo
~m-~~~·P l~r~~~i~i~~~
0
WMYtl:I ~
1 ~~~1.ri 2~1ii~~tm:~1~~~~
~1:~.1, ~ no JOU 21./;\1\'rl'ftfi1M~1l~Vt\% RQ' r '&
~ ~RlWJBE§
1 1
rrt~ ~e~s!f~rffo r6 1~8muri ei;iis'f s tua Tns eqqs
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 995
[DALVEER BHANDARI, J.]
trials where public and press have complete ?.ccess. A
143. Public access is essential if trial adjudication is to
achieve the objective of maintaining public confidence in the
administration of justice.
144. Publicity is the authentic hallmark of judicial B
functioning distinct from administrative functioning. Open trial
serves an important prophylactic purpose, providing an outlet
for community concern, hostility, and emotion. Public trial
restores the balance in cases when shocking crime occurs in
the society. C
145. People have inherent distrust for the secret trials. One
of the demands of the democratic society is that public should
know what goes on in court while being told by the press or
what happens there, to the end that the public may judge D
whether our system of criminal justice is fair and right. Criminal
trial is a public event. What transpires is a public property.
Therefore, I have no difficulty in concluding that open trial is the
universal rule and must be scrupulously adhered to. The right
to pub:ic trial has also been recognized under section 327 of E
the Code.
146. The importance of public trial in a democratic country
governed by rule of law can hardly be over emphasized, but at
the same time I cannot overlook the fact that primary function
of the judiciary is to do justice between the parties which bring F
their causes before it. Therefore, it is difficult to accede to the
proposition that there cannot be any exception to the universal
rule that all cases must be tried in open court. In a case of
extraordinary nature, the universal rule of open trial may not be
adhered to. This is the settled legal positipn crystallized by a G
three-Judge Bench of this court in Kehar Singh case (supra).
The High Court looking to the exceptional and extraordinary
circumstances can take such a decision and no personal
hearing is warranted before taking such a decision.
H
996 SUPREME COURT REPORTS [2010] 3 S.C.R.
A 147. The test as laid down by this Court in Kehar Singh's
case (supra) is whether public could have reasonable access
to the court room. The court noted:
"It may now be stated without contradiction that jail is not
a prohibited place for trial of criminal cases. Nor the jail
B
trial can be regarded as an illegitimate trial. There can be
trial in jail premises for reasons of security to the parties,
witnesses and for other valid reasons. The enquiry or trial,
however, must be conducted in open Court. There should
not be any veil of secrecy in the proceedings. There should
c ' not even be an impression that it is a secret trial. The
dynamics of judicial process should be thrown open to the
public at every stage. The public must have reasonable
access to the place of trial. The Presiding Judge must have
full control of the Court house. The accused must have all
D facilities to have a fair trial and all safeguards to avoid
prejudice."
148. The question arises -whether the.present case would
fall in the category of those extraordinary or exceptional cases
E where universal rule of open trial can be given a go-bye.
149. It is alleged by the learned counsel appearing for the
State that the appellant is involved in more than forty criminal
cases. In the counter affidavit filed by the State it is mentioned
· that a reign of terror has been created by the appellant and his
F 'private army' in the last two decades is l!>eyond imagination.
Some of the notorious crimes committed by the appellant and
his gang of criminals and the extent to which he has been
interfering with the administration of justice, has been
enumerated in detail in the counter affidavit.
G
150. During the raid conducted on 16.03.2001 in the house
of the appellant, the appellant and his private army fired upon
the raiding party and burnt the vehicles of the Deputy Inspector
General of Police, Saran Range, District Magistrate Siwan and
H Superintendent of Police Siwan. These criminals fired more
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 997
[DALVEER BHANDARI, J.]
thah 100 rounds of ammunition from arms including AK 47 and A
AK 56 etc. In that firing, one constable was killed and several
constables were injured. There are innumerable cases of the
same kind in which the appellant is directly involved.
151. It is also stated in the counter affidavit that prior to 8
the constitution of the Court in the jail premises, when the
appellant was remanded to Siwan Jail in various criminal cases
from time to time, he never co-operated and got himself
produced in the concerned court, situated only about one
kilometer away from Siwan Jail, on the dates fixed for his C
appearance. A large number of advocates and press people
have attended the hearings and they have been regularly
reporting this matter in the press.
152. Jn this case though the trials are taking place in jail
but in fact no real prejudice has been caused to the appellant. D
All 3a counsel of the appellant, public and press people are
permitted to remain present during the court proceedings. The
court proceedings were regularly reported in the Press.
153. I would like to reiterate my main findings on following
E
issues as under:-
I. Initially the copy of the notification was not given to
the appellant but on the directions of this court the
same was made available to the appellant. So there
is no surviving grievance of the appellant as far as F
this aspect of the matter is concerned.
II. The decision to hold the trials of cases of the
appellant in jail was taken in pursuance to the
notification dated 20.5.2006 issued by the High G
Court of Patna. The State Government issued two
notifications on 7th June, 2006 in pursuance to the
notification of the High Court dated 20.5.2006. It
became imperative for the State to issue the said
notification because the new venue of the trial, i.e.,
H
998 SUPREME COURT REPORTS [2010] 3 S.C.R.
A Siwan Jail was not within the control of the High
Court.
Ill. I hold that thes~ three notifications, one issued by
the High Court dated 20.5.2006 and two issued by
the State Government on 7.6.2006 are valid and
B
were issued in consonance with the provisions of
law.
IV. The High Court in view of the extraordinary facts and
circumstances of a particular case is empowered
c to change the venue of the pending case/trial
without hearing the appellant and this would. not
violate appellant's fundamental rights under Articles
14 and 21 or any other provision of the
Constitution. This controversy is no longer res
D integra and is fully settled in view of the judgment
of this court in Kehar Singh's case (supra).
V. In the instant case apart from appellant's 38
lawyers, the public and the press had access to the
court proceedings. The Siwan Jail is only one
E
kilometer from the Siwan Court. The court
proceedings were regularly reported in the press.
So in the instant case no real prejudice has been
caused to the appellant.
F 154. I accept the main argument of the learned counsel of
the appellant and reiterate that universal rule as recognized in
all civilized countries governed by rule of law is that the criminal
trial should be a public trial or open trial but in exceptional cases
there can be deviation from the universal rule in the larger public
G interest. The case in hand would fall in the category of those
extraordinary and exceptional cases where in the interest of
justice it became imperative to shift the venue of the trials for
the reasons stated in the preceding paragraphs.
155. On consideration of the totality of the facts and
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 999
circumstances, this appeal lacks merit and is accordingly A
dismissed.
156. Before parting with the case, I would like to place on
record my deep sense of appreciation for the able assistance
provided by the learned counsel for the parties.
B
DR. MUKUNDAKAM SHARMA, J. 1. I have had the
privilege of perusing the considered judgment of my esteemed
brother Justice Dalveer Bhandari. However, in view of the fact
that the present appeal involves several important and wide-
ranging questions of law, I wish to record my own reasons for C
the same, while, in essence, concurring with the conclusions
arrived at by my learned brother. I may, however, add that since
in the main judgment detailed facts have been delineated, I
refrain myself from repeating the same, but refer only to those
basic facts as would help in appreciating the issues discussed D
hereinafter. ·
2. Main challenge in this appeal as it appears from the
arguments advanced is to the legality and the validity of the
three notifications one of which was issued by the Patna High
E
Court on 20.05.2006 and the other two notifications dated
07.06.2006 were issued by the Government of Bihar.
3. The appellant, who was a Member of Parliament from
Siwan Lok Sabha Constituency, being aggrieved by the
issuance of the aforesaid notifications filed a writ petition in the F
High Court of Patna wherein he challenged the legality and
validity of the aforesaid three notifications.
4. The appellant was arrested in connection with the Siwan
P.S. Case No. 8 of 2001 and was remanded to judicial custody G
on 13.8.2003 and he continued to remain in custody till
18.02.2005 till he was granted bail by the Patna High Court on
10.02.2005. A number of other cases came to be lodged
against him and he was re-arrested and detained in Beur Jail,
Patna under the provisions of the Bihar Control of Crimes Act, H
1000 SUPREME COURT REPORTS [2010] 3 S.C.R.
A 1981. Though the aforesaid order of detention was set aside,
still the appellant continued to reinain in custody in connection
with other cases that had been lodged against the appellant.
5. The notification dated 20.05.2006 notified the decision
B of the Patna High Court that the premises of the District Jail,
Siwan would be the place of sitting of the Court of Session for
the Sessions Division of Siwan for exp~ditious trial of sessions
cases pending against the appellant namely Md. Shahabuddin.
By issuing the other two notifications dated 07.06.2006, the
Government of Bihar directed that the Court of Additional
C Distrid and Sessions Judge of Siwan, Sessions Division would
hold its sitting inside the jail premises of District Jail, Siwan for
trying the cases relating to the appellant herein. By issuing the
third notification dated 07.06.2006, the Government of Bihar in
exercise of power conferred under Section 11 of the Code of
D Criminal Procedure (for short 'the CrPC') and in consultation
with' the Patna High Cpurt ordered the establishment of a Court
of Judicial Magistrate of First Class inside the District Jail,·
Siwan for holding its sitting for the trial of cases pending against
the appellant. On issuance of the aforesaid notifications dated
E 07.06.2006, the venue for holding the trial of the cases pending
against the appellant was shifted to the premises of the District
Jail, Siwan.
6. The appellant had earlier challenged and assailed the
F legality and validity of the aforesaid notifications in the High
Court of Patna by filing a Writ Petition. It was submitted on
behalf of the present appellant before the High Court that the
provisions of Section 9(6) of the CrPC do not empower the High
Court to transfer.the pending cases although such power might
G or could be exertised with regard to the newly instituted cases.
It was also subniitted that since the State Government has no
power and jurisdiction to exercise powers under Section 9(6),
therefore, the notification issued by the State Government
exercising powers under Section 9(6) by way of establishing a.
Sessions Court in District Jail, Siwan is without jurisdiction and
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1001
[DR. MUKUNDAKAM SHARMA, J.]
violative of Articles 14 and 21 of the Constitution of India. It was A
next submitted that the rule of 'audi alteram partem' is
applicable to transfer of any case to any court to which
provisions of Section 407 of CrPC would apply. It was further
submitted that since the power of transfer of a case is a judicial
power, an opportunity of hearing should have been afforded to B
the appellant before exercising such powers and as the
aforesaid notifications were issued without doing so, the said
notifications were illegal, without jurisdiction and in violation of
the principles of natural justice. It was further submitted that the
expeditious hearing of cases is a concomitant of the principles c
of administration of justice and, therefore, the same could not
be a valid criteria for transfer of cases and that also cannot be
done in relation to one particular individual. It was also submitted
that the trial held in the District Jail, Siwan cannot be said to
be an open court and, therefore, there was violation of Section D
327 of the CrPC as also violation of the right to have a fair and
open trial.
7. All the aforesaid submissions made by the appellant
before the High Court were considered by the High Court and
by its impugned judgment and order dated 14.08.2007, the E
same were held to be without merit and consequently, the writ
petition was dismissed.
8. Being aggrieved by the aforesaid judgment and order
passed by the High Court, the present appeal was preferred F
by the appellant in which notice was issued. The learned
counsel appearing for the parties argued the case in extenso
and in conclusion of the same the judgment was reserved.
9. Mr. Ram Jethmalani, learned senior counsel appearing
for the appellant made extensive arguments during the course G
of which he even travelled beyond the pleadings filed in the writ
petition to which reference shall be made during the course of
present discussions on the various arguments raised before
this Court. On the basis of the pleadings and the arguments
advanced and on consideration thereof, the following legal H
1002 SUPREME COURT REPORTS [2010] 3 S.C.R.
A issues arise for consideration which have been dealt with
hereinafter: -
(a) The scope and ambit of the power under Section
9(6) and Section 11 of ·crPC.
B (b) While issuing the notification dated 20.05.2006, the
High Court had no intention of creating a jail
sessions court in exercise of its administrative
power under Section 9(6) of CrPC because it left
the same to be done by the/ State Government.
1
c Further, the notification dated 07.06.2006 was void
as the Governor of Bihar could not have exercised
power under Section 9(6) of CrPC as such power
lies exclusively with the High Court.
D (c) The notification dated 20.05.2006 was not supplied
to the appellant and the same was not published
in the Gazette and, therefore, the said notification
is invalid.
(d) If issues of the aforesaid nature were neither raised
E earlier in the writ petition nor argued in the writ
petition nor decided in the writ petition and not also
taken in the SLP, whether the same could be
argued as a question of law on the ground that such
legal issues could be amended at any time.
F
(e) Before issuing a notification was it necessary to
provide an opportunity of being heard to the
accused in compliance of the rule of 'audi alteram
partem' which is an embodied rule under Section
G 9(6).
(f) Section 9(6) of CrPC does not empower the High
Court to transfer any pending case but it covers only
new cases.
H (g) Reason for issuance of notification being only for
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1003
[DR. MUKUNDAKAM SHARMA. J.]
expeditious disposal which is even otherwise a A
necessary concomitant of administration of justice,
the notification is void as no special reason to
exercise power under Section 9(6) was spelt out
and also particularly when the said power is
exercised in the cases of only one individual. B
(h) A trial conducted inside the jail premises, not being
an open court, violates Section 327 of CrPC as well
as Articles 14 and 21 of the Constitution.
(i) Whether mention of the words 'Civil Code' and C
'Civil Court' in the notifications issued by the State
vitiates the notifications.
10. First of all, let me deal with the scope and ambit of the
power under Section 9(6) and Section 11 of CrPC. Since D
reference was also made by the counsel appearing for the
appellant to Section 407 of CrPC, it would be appropriate to
extract the aforesaid provisions in order to appreciate the
issues raised before us. Section 9 (6) of the CrPC reads as
follows: -
E
"9. Court of Session.
(6) The Court of Session shall ordinarily hold its sitting at
F
such place or places as the High Court may, by notification,
specify; but, if, in any particular case, the Court of Session
is of opinion that it will tend to the general convenience of
the parties and witnesses to hold its sittings at any other
place in the sessions division, it may, with the consent of·
the prosecution and the accused, sit at that place for the G
disposal of the case or the examination of any witness or
witnesses therein."
H
1004 SUPREME COURT REPORTS ' [2010] 3 S.C.R.
A Section 11 of the CrPC reads as follows:
"11. Courts of Judicial Magistrates.
(1) In every district (not being a metropolitan area), there
shall be established as many, Courts of Judicial
B Magistrates of the first class and of the second class, and
at such places, as the State Government may, after
consultation with the High Court, by notification, specify:
[Provided that the State Government may, after
c consultation with the High Court~ establish, for any, local
area, one or more Special Courts of Judicial Magistrate
of the first class or of the second· class to try any particular
case or particular class of cases, and where any such
Special Court is established, no other court of Magistrate
D in the local area shall have jurisdiction to try any case or
class of cases for the trial of which such Special Court of
Judicial Magistrate has been established.]
(2) The presiding officers of such Courts shall be
appointed by the High Court.
E
(3) The High Court may, whenever it appears to it to be
expedient or necessary, confer the powers of a Judicial
Magistrate of the.first cfclss or of the second class on any
member of"fhe ·Judicial Service of the State, functioning
F as a Judge in a Civil Court."
Section 407 of the CrPC reads as follows:
"407. Power of High Court to transfer cases and appeals.
G (1) Whenever it is made to appear to the High Court-
(a) That a fair and impartial inquiry or trial cannot be had
in any Criminal Court subordinate thereto, or
(b) That some question of law of unusual difficulty is likely
H to arise; or
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1005
[DR. MUKUNDAKAM SHARMA, J.]
{c) That an order under this section is required by any A
provision of this Code, or will tend be the general
convenience of the parties or witnesses, or is expedient
for the ends of, justice,it may order-
(i) That any offence be inquired into or tried by any court 8
not qualified under sections 177 to 185 (both inclusive),
but in other respects competent to inquire into or try such
offence;
(ii) That any particular case, or appeal, or class of cases
or appeals, be transferred from a Criminal Court C
subordinate to its authority to any other such Criminal Court
of equal or superior jurisdiction;
(iii) That any particular case be committed for trial of to a
Court of Session; or D
(iv) That any particular case or appeal be transferred to
and tried before itself.
(2) The High Court may act either on the report of the lower
court, or on the application of a party interested, or on its E
own initiative:
(8) When the High Court orders under sub-section (1) that
a case be transferred from any court for trial before itself, F
it shall observe in such trial the same procedure which that
court would have observed if the case had not been so
transferred."
G
11. Mr. Jethmalani, after referring to the aforesaid
provisions, submitted that the power to transfer cases from one
sessions division to other sessions division could be made only
in respect of the pending cases of which cognizance has been
H
1006 SUPREME COURT REPORTS [2010] 3 S.C.R.
A taken and evidence recorded only after resorting to the
principles of audi alteram partem, that is, upon opportunity of
hearing having been given to the party as the interest of the
party to have a fair and open trial is involved in the case and
consequently such a power could be exercised only under the
s provisions of Section 9(6) of CrPC which could only be done
after hearing the parties. Mr. Jethmalani also submitted that if
the administrative power of the High Court is construed as
applicable to a pending case and without any duty of affording
an opportunity of hearing, Section 9(6) should be considered
c as constitutionally invalid being opposed to Articles 14 and 21
of the Constitution of India. He also submitted that the power
under Section 9(6) could not have been exercised either by the
High Court or by the State Government and also that even-if-it
is held that the High Court has such a power vested in it under
D Section 9(6), the same could be exercised only in consonance
with the intention of the legislature gathered from the provisions.
Another connected issue which was raised was whether before
issuing a notification under Section 9(6), was it necessary to
provide an opportunity of hearing to the appellant in compliance
with the rule of audi alteram partem which is embodied in
E Section 9(6) of CrPC. Since both the aforesaid issues are
interconnected.and interr~lated, both the issues are taken up
together for consideratioh. ;
12. The aforesaid submissions of Mr. Jethmalani were
F vehemently refu~ed by Mr. Ranjit Kumar, learned senior counsel
appearing for the State of Bihar and also by Mr. P.H. Parekh,
learned senior counsel appearing for the Patna High Court.
They extensively relied upon the judgment rendered by this Court
in the case of Kehar Singh v. State (Delhi Administration)
G reported in 1988 SCC (3) 609, wherein the issue of change of
venue of the trial from the. Patiala House Court, Delhi to the
Special Court established in the Tihar Jail, Delhi had come up
for consideration.
13~ This Court in the aforesaid case was also called upon
H'
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1007
[DR. MUKUNDAKAM SHARMA, J.]
to interpret Section 9 of the CrPC and after referring to the A
various provisions of the CrPC and the provisions of Section
9, it was held that Section 9(6) is divided into two parts - the
first part thereof confers power on the High Court whereas the
second part thereof endows power on the Court of Sessions.
B
14. A bare reading of the aforesaid provisions of Section
9(6) explicitly indicates that the power conferred on the High
Court is the power to determine the place or places where the
Court of Session shall ordinarily hold its sittings. The second
part which immediately follows the first part opens with the word C
"but", thereby carving out an exception to the general rule that
the venue of the Court of Session shall be the place notified
by the High Court. That the power of the Court of Session to
fix the venue is an exception to the aforesaid general rule is
also indicated by the use of the word "ordinarily" in the first part
of Section 9(6) of CrPC. Thus, by vfrtue of the provision D
contained in the second part of Section 9(6), the Court of
Session is endowed with the power to hold its sittings at any
place in the sessions division other than that notified by the High
Court. However, being an exception, the CrPC specifically
mandates in the second part for observance of a special E
procedure contemplating compliance of the rule of audi alteram
partem and also for obtaining the consent of the parties before
the Court of Session may hold its sittings at a place other than
the place or places notified by the High Court. Being an
exception to the general rule, the power of the Court of Session F
to change the venue of a trial is circumscribed and could be
ex~rcfsed by the Court of Session only on the fulfillment of the
aforesaid condition and only on the ground that such change
in the venue of trial will tend to the general convenience of the
parties and witnesses. and cannot be exercised for any other G
purpose or on any other ground. Moreover, the said power can
be exercised only with reference to a particular case. The
expression "particular case" as used in the second part of
Section 9(6) connotes a single or specific case as opposed
to a bunch or class of cases. Being an exception to the general H
1008 SUPREME COURT REPORTS [2010] 3 S.C.R.
A rule, the conditions, subject to the fulfilment of which the power
to shift the venue of the trial may be exercised by the Court of
Session, have to be strictly construed. Thus, where the
conditions specified under the second part of Section 9(6) of
the Code are not complied with, the Court of Session has no
B power to shift the venue. In such a case, the power of shifting
the venue continues to lie with the High Court.
15. In the present case, the essential conditions ingrained
in the second part of Section 9(6), as set out above, are not
C applicable inasmuch as neither inconvenience to the parties or
witnesses was ever perceived or record~d by the Court of
Additional Sessions Judge nor was the venue of trial shifted
for a particular case. On the contrary, it was shifted for the entire
class of cases that were pending against the appellant. In light
of the aforesaid, it may be said that the power to change the
D venue of the trial of cases pending against the appellant, was
exercisable by the High Court and not by the Court of Session.
-Furthermore, a careful reading of Section 9(6) reveals that the
second part expressly requires the Court of Session to afford
the prosecution and the accused an opportunity of hearing and
E to obtain their consent beforehand. It is, therefore, not a case
falling under second part of Section 9(6) but is a case falling
under first part of Section 9(6) of CrPC.
16. Learned Senior Counsel appearing for the appellant
F also contended that there was a "transfer" of cases pending
against the appellant from the Sessions Court, Siwan to Jail
Sessions Court, Siwan and as such there was a case of
exercise of power under Section 407 of CrPG by the High Court
which is a judicial power and thus compliance with the rule of
G audi alteram partem was necessary. In my considered view, the
argument is entirely misplaced as Section 407 of the Code
deals with the power of the High Court to "transfer" cases and
appeals. The key word in this section is the word 'transfer',
which essentially consists of two steps: (a) removing a case
or class of cases from the jurisdiction of the cburt where it/they
H '
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1009
[DR. MUKUNDAKAM SHARMA, J.]
\
is/are pending trial, and (b) putting it/them under the jurisdiction A
of another court (whether of equal or superior jurisdiction) for
adjudication. Thus, every transfer involves two different courts.
By issuing the said notification, the High Court cannot be said
to have transferred the cases pending against the appellant,
for the said notification simply notified the premises of District B
Jail, Siwan, to be the place of sitting for holding the trial of cases
pending against the appellant. The notifications did not, in any
manner, affect or abridge the jurisdiction of the Court of
Session, Siwan, to try those cases. Thus, there was a shift
simpliciter in the venue of the trial, without there being anything c
more. In such circumstances, the present case cannot be said
to be a case of "transfer'' to which the provisions of Section 407
are attracted.
17. Now what remains to be examined is whether the rule
of audi alteram partem should have been complied with when D
the High Court notified a shift in the venue of the trial. The power
of the High Court under section 9(6) to notify a particular place
or places where the Court of Session shall ordinarily hold its
sitting is an administrative power unlike the power of the Court
of Session under second part of section 9(6) which is judicial E
in nature. Being so, the High Court was under no obligation to
observe the rule of audi alteram partem. The said power
undoubtedly is an administrative power exercisable by the High
Court. This position was also made clear by the decision of this
Court in Kehar Singh (supra) wherein it was observed as F
follows:
"171. The argument that the first part of Section 9(6) should
be read along with the second part thereof has, in the
context, no place. The first part provides power to the High G
Court. It is an administrative power, intended to further the
administration of justice. The second part deals with the
power of the Court of Session. It is a judicial power of the
court intended to avoid hardship to the parties and
witnesses in a particular case. One is independent of and
H
1010 SUPREME COURT REPORTS (2010] 3 S.C.R.
A unconnected with the other. So, one should not be
confused with the other. The judicial power of the Court of
Session is of limited operation, the exercise of which is
conditioned by mutual consent of the parties in the first
place. Secondly, the exercise of that power has to be
B narrowly tailored to the convenience of all concerned. It
cannot be made use of for any other purpose. This limited
judicial power of the 'Court of Session should not be put
across to curtail the vast administrative power of the High
Court."
c 18. The intention qf the legislature for. providing an
opportunity of hearing in the matters of transfer of criminal
cases could be gathered from the language used in the
provision wherein the legislature desired that there should be
an opportunity of hearing that is so specifically stated in the
D language itself and where the legislature desired that there
should be a power of the High Court to fix the place or places
of sittings of a Sessions Court for holding its trial, it has so
men!ioned explicitly by excluding the rules of natural justice from
its ambit thereby excluding the principles of audi alteram
E partem.
19. In ,Union of India v. Col. J.N. Sinha, (1970) 2 SCC
458, at page 460, this Court observed as follows:
"8. Fundamental Rule 56(i) in terms does not require that
F
any opportunity should be given to the concerned
government servant to show cause against his compulsory
retirement. A government servant serving;.1,1nder the Union
of India holds his office at the pleasure of the President
as provided in Article 310 of the Constitution. But this
G "pleasure" doctrine is subject to the rules or law made
under Article 309 as well as to the conditions prescribed
under Article 311. Rules of natural justice are not embodied
rules nor can they be elevated to the position of
fundamental rights. As observed by this_Court in A.K.
H Kraipak v. Union of India "the aim of rules of natural justice
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1011
[DR. MUKUNDAKAM SHARMA, J.]
is to secure justice or to put it negatively to prevent A
miscarriage of justice. These rules can operate only in
areas not covered by any law validly made. In other words
they do not supplant the law but supplement it". It is true
that if a statutory provision can be read consistently with
the principles of natural justice, the courts should do so B
because it must be presumed that the Legislatures and
the statutory authorities intend to act in accordance with
the principles of natural justice. But if on the other hand
a statutory provision either specifically or by necessary ,,,
implication excludes the application of any or all the c
principles of natural justice then the court cannot ignore
the mandate of the Legislature or the statutory authority
and read into. the concerned provision the principles of
natural justice. Whether the exercise of a power conferred
should be made in accordance with any of the principles
D.
of natural justice or not depends upon the express words
of the provision conferring the power, the nature of the
power conferred, the purpose for which it is conferred and
the effect of the exercise of that power."
(emphasis supplied) E
20. In Haradhan Saha v. State of WB. (1975) 3 SCC 198,
at page 208, a five judge Bench of this Court reiterated the
··-- aforesaid view as follows:
"30. Elaborate rules of natural justice are excluded either F
expressly or by necessary implication where procedural
provisions are made in the statute or where disclosure of
relevant information to an interested party would be
contrary to the public interest. If a statutory provision
excludes the application of any or all the principles of G
natural justice then the court does not completely ignore
the mandate of the legislature. The court notices the
distinction between the duty to act fairly and a duty to act
judicially in accordance with natural justice. The detaining
authority is under a duty to give fair consideration to the H
1012 SUPREME COURT REPORTS [2010] 3 S.C.R.
A representation made by the detenu but it is not under a duty
to disclose to the detenu any evidence or information. The
duty to act fairly is discharged even if there is not an oral
hearing. Fairness denotes abstention from abuse of
discretion."
B
(emphasis supplied)
21. It has been the consistent view of this Court that an
administrative order when passed by a competent authority
may not necessarily be required to be issued only after due
C compliance with the principles of natural justice. Reference in
this regard may be made to the decisions of this Court in Olga
Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545;
Carborundum Universal Ltd. v. Central Board of Direct Taxes, /
(1989) Supp. 2 SCC 462; and Ajit Kumar Nag v. G. M. (PJ),
D Indian Oil Corp. Ltd., (2005) 7 SCC 764.
22. The second part of Section 9(6) of the CrPC expressly
requires the Court of Session to afford the prosecution and the
accused an opportunity of hearing and to obtain their consent
E beforehand whereas there is no such stipulation under first part
of Section 9(6). The omission of such a requirement in case
of the High Court pertaining to first part of sub-section (6) of
Section 9 is to be construed as a conscious decision on the
part of the legislature for, it intended to exclude such a
requirement when such power is to be exercised by the High
F Court.
23. Even otherwise, it is a well-settled principle in law that
the court cannot read anything into a statutory provision which
is plain and unambiguous. The language employed in a statute
G is a determinative factor of the legislative intent. If the language
of the enactment is clear and unambiguous, it would not be
proper for the courts to add any words thereto and evolve some
legislative intent, not found in the statute. Reference in· this
regard may be made to a recent decision of this Court in Ansal
H_
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1013
[DR. MUKUNDAKAM SHARMA, J.]
Properlies & Industries Ltd. v. State of Haryana (2009) 3 SCC A
553.
24. Further, it is a well established principle of statutory
interpretation that the legislature is specially precise and careful
in its choice of language. Thus, if a statutory provision is 8
enacted by the legislature, which prescribes a condition at one
place but not at some other place in the same provision, the
only reasonable interpretation which can be resorted to by the
courts is that such was the intention of the legislature and that
the provision was consciously enacted in that manner. In such C
cases, it will .be wrong to presume that such omission was
inadvertent or that by incorporating the condition at one place
in the provision the legislature also intended the condition to
be applied at some other place in that provision.
25. On a detailed and proper interpretation of Section 9(6) D
of CrPC there can be only one opinion that it was not necessary
for the High Court to observe or comply with the rule of audi
alteram partem before notifying a shift in the venue of the trial,
for such power of the High Court under Section 9(6) of the CrPC
to notify a particular place or places where the Court of Session E
shall ordinarily hold its sitting, is an administrative power unlike
. the power of the Court of Session under second part of Section
9(6) which is a purely a judicial power in nature. Consequently,
the High Court was under no requirement to follow and to
comply with the rule of audi alteram partem before issuing the F
notification dated 20.05.2006.
26. As stated hereinbefore, a feeble attempt was made
to argue the constitutional validity of Section 9(6). Significantly,
no such plea was ever raised at any stage and even such
ground was not raised in the memo of appeal. An important G
question of constitutional validity of a provision in a Central Act
cannot be permitted to be raised for the first time at the stage
of final hearing. The Union of India is also not a party in the
present proceeding and in its absence no such issue could be
allowed to be raised, argued and decided. H
1014 SUPREME COURT REPORTS [2010] 3 S.C.R.
A 27. Now, I come to Section 11 of the CrPC which makes
it explicitly clear that a Court of Judicial Magistrate could be
established by the State Government after consultation with the
High Court. The State Government is vested with the power,
after due consultation with the High Gourt, to create or to
B establish for any local area one or more Judicial Magistrate
Court of the First Class so as to try any particular case or
particular class of cases and that where such special court is
established, no other court be created or established for such
a case or any class of cases for the trial of which such a Court
c of Judicial Magistrate has been established.
28. In terms of Section 9(6) and Section 11 of the CrPC,
the venue of Court of Session for holding of trial of the cases
pending against the appellant was shifted to, and Court of
Judicial Magistrate First Class was established in, the District
D Jail, Siwan.
29. It is the case of the appellant that while jssuing the
notification dated 20.05.2006, the High Court had no intention
of creating a jail Sessions Court in exercise of its administrative
E power because it left the same to be done by the State
Government and further that the notification dated 07.06.2006
was void as the Governor of Bihar could not have exercised
power under Section 9(6) of the CrPC. He further submitted that
the notification dated 20.05.2006 was not supplied to the
F appellant and the same was not published in the Gazette and,
therefore, the said notification was invalid.
30. The aforesaid submission of the learned senior
counsel appearing for the appellant was strongly refuted by Mr.
Ranjit Kumar, learned senior counsel appearing for the State
G of Bihar and also by Mr. P.H. Parekh, learned senior counsel
appearing for the High Court of Patna.
31. Mr. Ranjit Kumar specifically submitted that neither such
plea was raised in the writ petition nor argued before the High
H Court nor any such issue was raised before this Court and,
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1015
[DR. MUKUNDAKAM SHARMA, J.]
therefore, such an issue cannot be raised for the first time at A
the time of hearing of the present appeal. Mr. Jethmalani,
however, tried to repel the aforesaid objection taken by Mr.
Ranjit Kumar contending, inter alia, that the aforesaid issue
being a legal one, the same could be amended and could be
raised by him at any point of time. B
32. I find force in the submissions of Mr. Ranjit Kumar, the
learned senior counsel appearing for the State of Bihar that the
issue which was sought to be raised about the non-publication
of the notification in the official Gazette is a mixed question of C
law and fact and, therefore, the same should have been raised
specifically in the writ petition and at least in this appeal petition.
It also does not appear to us from the material available on
record that such an issue was ever raised by the appellant
before the High Court. Therefore, the issue being raised, for
the first time, at the time of hearing of the case before us which, D
according to us, cannot be permitted to be raised for the first
time for the simple reason that the issue being whether the
notification dated 20.05.2006 was supplied to the appellant and
the same was published in the Gazette or not, is not a pure
question of law but a mixed question of law and fact. The said E
facts were required to be urged evidentially before the courts
below. Unless such a factual foundation is available it is not
possible to decide such a mixed question of law and fact.
Therefore, such a mixed question of law and fact should not be
allowed to be raised at the time of final hearing of appeal F
before this Court. [Reference in this regard may be made to a
recent decision of this Court in Shakti Tubes Ltd. v..State of
Bihar, (2009) 7 SCC 673]. However, in order to do complete
justice to the parties the parties were called upon to place their
additional documents, relevant to the issues involved, if any, G
which were accepted during the course of arguments.
33. On going through the records, it is clear that before
issuance of the notification dated 20.05.2006, a bunch of
correspondences had taken place among the different
H
1016 SUPREME COURT REPORTS (2010] 3 S.C.R.
A authorities. The Superintendent of Police, Siwan under his letter
No. 1493 dated 08.05.2006 wrote to the District Magistrate,
Siwan that more than 40 cases were pending against the
appellant. In the said letter, it was also indicated that there were
directions issued by the Patna High Court to dispose of the
B cases expeditiously. It was further indicated that there was a
serious danger to public peace during the presence of the
appellant in the court premises due to the fact that his
supporters and other co-criminals could attack the witnesses
and that even the possibility of threat and attack on the Public
c Prosecutor and the District Prosecuting Officer could not be
ruled out. It was mentioned in the letter that besides that, since
the appellant was wanted in many criminal cases, other criminal
groups could attack him. It was also mentioned in the letter that
since the appellant was a sitting MP and had a large number
D of supporters, there was every possibility of the working of the
other courts in District Court, Siwan being impaired for, his
supporters could create disturbance during hearing and that
there could be murder and other serious law and order
problems during the hearing of the cases of the appellant.
E 34. The District Magistrate after receipt of the aforesaid
communication concurred with the report of the Superintendent
of Police, Siwan and wrote to the Home Secretary, Bihar
requesting for necessary action for construction of court rooms
in District Jail for trial of cases relating to the appellant. The
F Law Secretary, Government of Bihar thereafter by his letter No.
361/C/2006 dated 09.05.2006 wrote to the Registrar General
of the Patna High Court by enclosing a photocopy of the letters
of the Superintendent of Police, Siwan and the District
Magistrate, Siwan. He alleged that Md. Shahabuddin, the
G appellant was a high profile MP of Siwan having criminal
al'.tecedents, reportedly facing prosecution in more than 40
cases. He also mentioned in his report that his physical
production in the court during the trial may be a source of
menace to the public peace and tranquility, besides posing a
H great threat to the internal security extending to other
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1017
[DR. MUKUNDAKAM SHARMA. J.]
prosecution witnesses and other prosecutors. It was also A
indicated in the report that it may also have adverse impact on
inside court working condition making the situation surcharged
during the trial. He suggested that to promote efficient
conducting of trial as also to strengthen its efficacy, the trial of
the appellant be conducted by constituting a special court inside B
the District Jail, Siwan which, according to him, was an
imperative need of the time. He therefore, suggested that the
Patna High Court may be requested to constitute special courts
for the trial of the appellant inside the District Jail, Siwan.
35. The aforesaid records were placed before the
Registrar General of the Patna High Court who put up a note
upon which the Chief Justice of the Patna High Court directed
the matter to be put up before the Standing Committee. A list
of Additional Sessions Judges for the trial of sessions cases
and a list of Special Magistrates were also placed for D
consideration before the Standing Committee. Consequently,
the matter was placed before the Standing Committee in its
meeting held on 11.05.2006. The Agenda for the said meeting
is reproduced hereunder: ,
E .
"Letters received from the Law Secretary, Government of
Bihar regarding designation of Special Court of Session
and Court of Judicial Magistrate First Class for expeditious
trial of the cases pending against Md. Shahbuddin and for
notifying Siwan Jail a place for shifting of Sessions Court F
and Magisterial Court inside the jail for trial of such cases."
36. In.the aforesaid meeting of the Standing Committee,
a decision was taken to the following effect:
"Upon due deliberation and consideration of the letters G
received from the Law Secretary, regarding designation
of Special Court of Session and Court of Judicial
Magistrate, 1st Class for expeditious trial of cases pending
against Md. Shahbuddin and for notifying the Siwan Jail
for sitting of Sessions and Magisterial Courts inside the H
1018 SUPREME COURT REPORTS [2010] 3 S.C.R.
A Siwan Jail for trial of such cases. It is resolved to designate
one Court of Additional District and Sessions Judge as
Special Court for trying the cases triable by the Court of
Session and one Court of Judicial Magistrate for trying the
cases triable by the Court of Magistrate, First Class. The
B matter of posting of the Officers i.e. ADJ and Judicial
Magistrate, First Class, the matter is placed before the
Sub Committee which has been entrusted the transfer and
posting under the Annual General Transfer. It is also
resolved that the Siwan Jail premises be notified as a
c place of sitting of Sessions Court and Magisterial Court
under provisions of Section 9(6) of Criminal Procedure
Code".
37. Subsequent thereto, another note was prepared by the
Joint Registrar (Establishment) on 17 .05.2006 which was
D placed before the Registrar General in which it was pointed out
that Section 9(6) of the CrPC related only to the Court of
Session and not to the Judicial Magistrate and, therefore, a
request was made to place the matter before the court for
necessary orders. After obtaining the order of the Registrar
E General and the Chief Justice of the Patna High Court to the
aforesaid extent the matter was placed before the Standing
Committee which in its meeting dated 18.05.2006 decided as
under:
F "It is resolved that the minutes of the proceeding of the last
meeting of the Standing Committee held on 11th May,
2006, be approved, with the only modification that in the
last line of agenda item No. (4) after section 9 sub-section
(6) "and Section 11 sub-section (1) of the Code of Criminal
Procedure, 1973, respectively" be added".
G
38. Pursuant to the aforesaid decision of the Standing
Committee of the Patna High Court, the notification dated
20.05.2006 was issued by the Patna High Court which reads
- as follows :
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1019
[DR. MUKUNDAKAty1 SHARMA, J.]
"In exercise of powers conferred under Sub section (6) of A
Section 9 of the Criminal Procedure Code, 1973, the High
Court have been pleased to decide that the premises of
the District Jail, Siwan will be the place of sitting the Court
of Session for the Sessions Divisions of Siwan for the
expeditious trial of Sessions cases pending against Md. 8
Shahabuddin."
39. By letter No. 5137/Admn. (Appointment) dated
20.05.2006, Mr. Gyaneshwar Shrivastav, Additional District and
Sessions Judge was designated as the Presiding Officer
(Special Judge) constituted inside the District Jail, Siwan for C
the expeditious trial of sessions cases pending against the
appellant. Similarly, by letter No. 5139, the Registrar General
informed the Law Secretary that Patna High Court had been
pleased to accept the proposal of the State Government for the
establishment of a Special Court of Judicial Magistrate First D
Class inside the District Jail, Siwan for the expeditious trial of
cases pending against the appellant.
40. The Registrar General under letter No. 5141 dated
20.05.2006 informed the Secretary, Department (Personnel) E
that the Patna High Court has been pleased to recommend the.
name of Sri Vishwa Vibhuti Gupta, Judicial Magistrate, First
Class, Siwan, for his designation as Presiding Officer (Special
Magistrate) of the Special Court of Judicial Magistrate, First
Class being constituted to function inside the District Jail, Siwan
F
for expeditious trial of cases pending against the appellant.
41. The Registrar General under his letter No. 5145 dated
20.05.2006 wrote to the Superintendent, Secretariat Press,
Bihar, Gulzarbagh, Patna with a request to publish the
notification issued under Section 9(6) of the CrPC in the next G
issue of the Bihar Gazette. The issuing section was instructed
to issue the same at once on the very same day under a
· sealed cover as per the direction of the Registrar General.
However, the said notification which was directed to be
published in the next issue of the Bihar Gazette came to be H
1020 SUPREME COURT REPORTS [2010] 3 S.C.R.
/
A published in Part - I of the Bihar Gazette dated 16.08.2006
along with other notifications of various dates. Thereafter, the
Law (Judicial) Department, Government of Bihar, Patna
published the two Notifications bearing No. 1452 dated
07.06.2006 with S.O. 80 and 82 in the Bihar Gazette (Extra
8 Ordinary Edition) which were assailed by the appellant. The
Personnel Department also issued the Notification Nos. 5556
and 5557 dated 12.06.2006 regarding appointment of
Presiding Officer for the said two Special Courts.
42. It is therefore conclusively established that the High
C Court took all necessary steps to get the notification issued and
published in the official gazette. If however the Government
Press took some time to get the notification published in the
official gazette, the High Court cannot be blamed for it nor could
the notification be declared to be void particularly when it was
D so published in the official gazette, as it is established from the
records placed before us, although after some delay. The
appellant also failed to prove before us and had also failed to
plead before the writ Court that the said notification issued by
the High Court is void on the ground of non-publication of the
E same in the official gazette. The appellant has not even pleaded
such ground in the writ petition or in the Memorandum of Appeal
nor placed any evidence before us to show-tflcit-any-effective
order which was prejudicial to him was passed in any_of the
criminal cases during the aforesaid period. Instead, he took part .
F in all the proceedings without any protest and now at the time
of argument is making an effort to take up such issues, which
again involve questions of fact, and therefore, cannot be
allowed to be raised only at this stage.
43. By issuing one of the aforesaid two impugned
G notifications the State of Bihar, in exercise of its powers
conferred under Section 11 of the CrPC and in consultation with
the Patna High Court, was pleased to establish a Court of
Judicial Magistrate, First Class inside the District Jail, Siwan
to hold its sitting inside the jail premises for the trial of cases
H
MD. SHAHABUDDIN v. SIATE OF BIHAR & ORS. 1021
[DR. MUKUNDAKAM SHARMA, J.]
pending against the appellant in the Court of Judicial A
· Magistrate, First Class. The said notification was challenged
by the appellant on various grounds. But on consideration of
the records of the case, I am satisfied that the impugned
notification satisfies all the requirements and all the four corners
as envisaged under Section 11 of the CrPC and, therefore, the B
said notification appears to us to be legal and valid inasmuch
as, according to us, the same was issued by the competent
authority and also in full compliance with the requirements and
the safeguards provided in the said provisions.
44. So far the other notifications which were issued by the
c
Government of Bihar are concerned, the same were issued on
07.06.2006 directing that the Court of Additional District and
Sessions Judge of Siwan Sessions Division would now hold
its sitting inside the District Jail, Siwan to try sessions cases
pending against the appellant. The legality and validity of the D
same was challenged on the ground that the State Government
has no power to issue such a direction under Section 9(6) and
Section 11 of the CrPC. As already discussed hereinbefore
that the power under Section 9(6) is vested in the High Court
and in exercise of the said power the High Court had issued a E
notification on 20.05.2006 which was also published in the
official Gazette. The subsequent notification issued by the State
of Bihar appears to be a surplusage, which was issued for
making available the jail premises for the purpose of holding
the Sessions Court. The competent authority as envisaged F
under law having issued a notification for constituting and
establishing a Sessions Court within the District Jail, Siwan,
any further notification by the State Government making the jail
premises available for the said purposes cannot be said to be
illegal and void. G
45. I am, therefore, of the considered view that there is no
infirniity in establishing both the Special Courts i.e. the Court
of Additional District and Sessions Judge to try sessions cases
pending against the appellant and the Court of Judicial
H
1022 SUPREME COURT REPORTS [2010] 3 S.CR.
A Magistrate, First Class to try the cases pending against the
appellant in the Court of Judicial Magistrate, First Class, inside
the premises of the District Jail, Siwan as the notification under
Section 9(6) was issued in accordance with the provisions of
law by the High Court of Patna and subsequent notification was
B also issued by the Government of Bihar in consultation with the
Patna High Court.
46. Another issue which was raised by the learned senior ·-
counsel appearing for the appellant was that the notification
dated 07.06.2006 issued by the State Government apart from
C referring to the provisions of Section 9 of the CrPC also refers
and relies upon the provisions of Section 14 (1) of the Bengal,
Assam and Agra Civil Courts Act, 1887. It was submitted that
since the aforesaid reference was made in the notification, the
same pinpoints to the fact of non-application of mind by the
D competent authority and on that ground the notification was
illegal and void.
47. I am unable to accept the aforesaid submission for the
simple reason that if the notification quotes a wrong section and
E refers to a wrong provision, the same cannot be held to be
invalid if the validity of the same could be upheld on the basis
of some other provision. In N. Mani v. Sangeetha Theatre,
(2004) 12 SCC 278, at page 279, a three judge Bench of this
Court. succinctly observed as follows:
F "9. It is well settled that if an authority has a power under
the law merely because while exercising that power the
source of power is not specifically referred to or a
reference is made to a wrong provision of law, that by itself
does not vitiate the exercise of power so long as the power
G does exist and can be traced to a source available in law."
48. It is a well-established law that when an authority
passes an order which is within its competence, it cannot fail
merely because it purports to be made under a wrong provision
H if it can be shown to be within its power under any other
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1023
[DR. MUKUNDAKAM SHARMA, J.]
provision or rule, and the validity of such impugned order must A
be judged on a consideration of its substance and not its form.
The' principle is that we must ascribe the act of a public servant
to an actual existing authority under which it would have validity
rather than to one under which it would be void. In such cases,
this Court will always rely upon Section 114 Ill. (e) of the B
Evidence Act to draw a statutory presumption that the official
acts are regularly performed and if satisfied that the action in
question is traceable to a statutory power, the courts will uphold
such State action. [Reference in this reg~rd may be made to
the decisions of this Court in P. Balakotaiah v. Union of India, C
AIR 1958 SC 232; Lekhraj Sathramdas Lalvani v. N.M. Shah,
Deputy Custodian-cum-Managing Officer, (1966) 1 SCR 120;
Peerless General Finance and Investment Co. Ltd. v. Reserve
Bank of India, (1992) 2 SCC 343; B.S.E. Brokers' Forum,
Bombay v. Securities And Exchange Board of India, (2001) D
3 sec 4821
49. Although the State Government could not have
exercised powers under the provisions of Sections 13 and 14
(1) of the Bengal, Assam and Agra Civil Courts Act, 1887 for
making available the jail premises for the purpose of holding E
the Sessions Court, the provisions of the CrPC would be
applicable under sub-section (6) of Section 9 of the CrPC. The
aforesaid contention, therefore, is also without merit and is
rejected.
F
50. The next contention which was raised by the learned
senior counsel appearing for the appellant was that the
aforesaid power and jurisdiction could not be exercised by the
High Court in respect of the trials relating to one particular
individual pending in one Sessions Division. It was further
contended that if at all such power was exercisable, it could be G
exercised only with regard to new cases. If the power could be
exercised by the High Court for establishing a new court, the
same could be created for a group of cases or a class of
cases. There were about 40 cases pending against the
H
1024 SUPREME COURT REPORTS [2010] 3 S.C.R.
A appellant and they were being tried in different courts creating
difficulties for conducting the cases at various courts both for
the prosecution as also to the appellant. That also created a
number of problems as mentioned in the letter dated
08.05.2006 of the Superintendent of Police, Siwan which was
B affirmed by the District Magistrate. The Law Secretary,
Government of Bihar had also affirmed the said reasons.
Therefore, in order to dispose of all the cases pending against
the appellant most expeditiously at one place without being in
any manner disturbed by the factors mentioned in the letter of
C the Superintendent of Police could be said to be a reasonable
ground.
51. Expeditious disposal of cases is also a factor and a
necessary concomitant to administration of justice and the
hallmark of fair administration of justice. Since the venue of the
D trial of a group or a class of cases was shifted by establishing
and constituting a Court within the District Jail, Siwan, the same
cannot be said to be void or invalid in any manner. The
aforesaid issue, therefore, stands answered accordingly along
with the issue which was argued by the learned senior counsel
E appearing for the appellant that reason for issuance of
notification being only the expeditious disposal of the cases
pending against the appellant which is even otherwise a
necessary concomitant of the administration of justice, the
notification was void as no special reason to exercise such
F power under Section 9(6) of the' CrPC is spelt out and also
particularly when the said power is exercised in the cases of
only one indiv.idual. I have dealt with the aforesaid issue as well
and have given my reasons for rejecting the aforesaid
submission for, according to me, the said submission is devoid
G of any merit.
52. The correspondences spell out as to why the trial of
all the cases of the appellant should be held at one place. The
reasons given in the aforesaid communications were sufficient
to arrive at a conclusion which was rightly done by the High
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1025
[DR. MUKUNDAKAM SHARMA, J.]
Court to have the trial of all the cases of the appellant pending A
against him. So far the contention as to whether or not such
power as envisaged under Section 9(6) of the CrPC could be
exercised in a pending case, there is no reason as to why the
said power should not be applicable even to pending cases
and, therefore, the said contention is also without any valid B
substance.
53. The next issue which arises for consideration is based
on the submissions of the learned senior counsel appearing for
the appellant is that a trial must be conducted in an open court
and the constitution of a special Sessions Court in the jail C
premises of District Jail, Siwan amounts to violation of Articles
14 and 21 of the Constitution of India as also of the provision
contained in Section 327 of CrPC. This issue was e,><tensively
argued by the learned senior counsel appearing for the
appellant. However, learned senior counsel appearing for the D
respondent vehemently repelled the aforesaid submission and
submitted that the grievance of the appellant with regard to a
fair trial not being meted out to him in the jail is unfounded. It
was further submitted that only because the trial is being
conducted against the appellant in the jail premises, it cannot E
be said that the same was not open and public.
54. According to Black's Law Dictionary (6th Edition, 1990,
p. 1091), an "open court" means a court to which the public
have a right to be admitted. This term may mean either a court
F
which has been formally convened and declared open for the
transaction of its proper judicial business, or a court which is
freely open to spectators. In R. v. Denbigh Justices, (1974) 2
All ER 1052, 1056 (QBD), it was held that the presence or
absence of the press is a vital factor in deciding whether a G
particular hearing was or was not in the open Courts. It was
further held that if the press has been actively excluded, the
hearing is not in the open Courts. On the other hand, even if
the press is present, if individual members of the .public are
refused admission, the proceedings cannot be considered to
go on in open Courts. In my considered view an 'open court' is H
1026 SUPREME COURT REPORTS [2010] 3 S.C.R.
A a court to which general public has a right to be admitted and
access to the court is granted to all the persons desirous of
entering the court to observe the conduct of the judicial
proceedings. Although the general rule still remains that a trial
must be conducted in an open court, it may sometimes become
B necessary or rather indispensable to hold a trial inside a jail.
Considerations of public peace and tranquility, maintenance of
law and order situation, safety and security of the accused and
the witnesses may make the holding of a trial inside the jail
premises imperative as is the situation in the present case. The
c legal position as regards the validity of a trial inside the jail
premises is well settled. In Kehar Singh case (supra) Shetty
J. in his concurring judgment, after going through a number of
authorities, on this issue observed thus:
"45. It may now be stated without contradiction that jail is
D not a prohibited place for trial of criminal cases. Nor the
jail trial can be regarded as an illegitimate trial. There can
be trial in jail premises for reasons of security to the
parties, witnesses and for other valid reasons. The enquiry
or trial, however, must be conducted in open Court. There
E should not be any veil of secrecy in the proceedings. There
should not even be an impression that it is a secret trial.
The dynamics of judicial process should be thrown open
to the public at every stage. The public must have
reasonable access to the place of trial. The Presiding
F Judge must have full control of the Courthouse. The
accused must have all facilities to have a fair trial and all
safeguards to avoid prejudice."
55. It is evidently clear from the aforesaid decision that a
G trial inside a jail does not stand. vitiated solely because it is
conducted inside the jail premises. However, at the same time,
there must b~ compliance of the provisions contained in
Section 327 of .the CrPC which guarantees certain safeguards
to ensure that ~ trial is an· open trial. Section 327 of CrPC is
reproduc;ed as hereunder:
H
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1027
[DR. MUKUNDAKAM SHARMA, J.]
"327. Court to be open. A
(1) The place in which any Criminal Court is held for the
purpose of inquiring into or trying any offence shall be
deemed to be an open court to which the public generally
may have access, so far as the same can conveniently 8
contain them:
Provided that the presiding Judge or Magistrate may, if he
thinks fit, order at any stage of any inquiry into, or trial of,
any particular case, that the public generally, or any
particular person, shall not have access to, or be or remain C
in, the room building used by the court.
(2) Notwithstanding anything contained in sub-section (1 ),
the inquiry into and trial of rape or an offence under section
376, section 376A, section 3768, section 376C or section D
376D of the Indian Penal Code (45 of 1860) shall be
conducted in camera:
Provided that the presiding Judge may, if he thinks fit, or
on an application made by either of the parties, allow any
particular person to have access to, 9r be or remain in, E
the room or building used by the courr.------
(3) Where any proceedings are held under sub-section (2),
it shall not be lawful for any person to print or publish any
matter in relation to any such proceedings, except with the F
previous permission of the court."
56. Learned counsel appearing for the respondent brought
to our notice that on the direction of the Presiding Judge, a
general notice inviting the public to witness the trial of the G
appellant was affixed on the jail gate, the appellant was
represented by 38 advocates who regularly attend•3d the court
in jail premises, the day-to-day proceedings of the court were
reported in the newspapers daily and that the entry was allowed
to all persons after entering their personal details into a register
H
1028 SUPREME COURT REPORTS [2010] 3 S.C.R.
A maintained by the jail authorities. Furthermore, a retired judicial
officer who was a relative of the appellant had attended all the
proceedings of the court. All the aforesaid facts have not been
controverted by the appellant. We have also not been shown
or made aware of any fact that any permission sought for by
B any intending person to witness the proceedings was refused
by the authority. As a matter of fact, presence of a press person
in the audience present on one occasion at least was
vehemently objected to by the appellant himself. In view of the
aforesaid, I find that there was sufficient compliance with
c Section 327 of the CrPC.
57. After referring to the decision of this Court in the case
of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, the
learned senior counsel appearing for the appellant assailed the
impugned notifications on the ground that the object of
D expeditious trial of cases does not amount to a valid criterion
for shifting the venue of the trial. In my considered opinion, the
aforesaid decision has no application to the present case as
in Anwar Ali case (supra) the West Bengal Special Courts Act,
1950 was enacted which provided for differential treatment for
E the trial of criminals in certain cases and for certain offences.
On the contrary, in the present case, the notifications issued
by the Patna High Court and the Government of Bihar simply
shifted the venue of the trial of cases pending against the
appellant in the different courts to the premises of the District
F Jail, Siwan. I wish to point out that it is well settled law that a
classification may be reasonable even though a single
individual is treated as a class by himself, if there are some
special circumstances or reasons applicable to ~im alone and
not applicable to others. The reasons which necessitated the
G shifting of the venue of the trial of cases pending against the
appellant only have already been discussed hereinbefore. It
must be noted that no special procedure was prescribed and
the cases were to be conducted and disposed of in accordance
with the ordinary criminal procedure as prescribed under the
H CrPC. I am, therefore, of the considered opinion that no
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1029
[DR. MUKUNDAKAM SHARMA, J.]
prejudice was caused to the appellant while shifting the cases A
to the Special Courts situated inside the premises of District
Jail, Siwan. Therefore, I am of the considered view that there
is no violation either of Section 327 or of Articles 14 and 21 of
the Constitution. ·
B
58. In light of the aforesaid discussion, although aforesaid
issues were raised before us for challenging the legality and
the validity of the three notifications which were issued by the
respondents for holding the trial of cases pending against the
appellant in one Sessions Division and for constituting and C
establishing two Special Courts i.e. the Court of Additional
District and Sessions Judge to try sessions cases pending
against the appellant and the Court of Judicial Magistrate, First
Class to try the cases pending against the appellant in the
Court of Judicial Magistrate, First Class, within the premises
of the District Jail, Siwan, I find no merit and force in the D
submissions of the learned senior counsel appearing for the
appellant.
59. Having held, thus, in the foregoing paragraphs of this
judgment, all the issues that were framed in paragraph 9 above, E
on the basis of the arguments of the parties stand discussed
and answered.
60. That being the position, I uphold the legality and the
validity of all the three notifications. Consequently, the trial can
F
proceed as against the appellant in all the pending cases and
it would continue to be held in terms of the notifications in
accordance with law. ·
61. In view of the foregoing, the order passed by the High
Court is upheld and consequently the appeal filed by the G
appellant stands dismissed. The parties are left to bear their
own costs.
R.P. Appeal dismissed.
H
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